Informed consent?

[denny]

http://www.timesonline.co.uk/article/0,,2-1888035,00.html

I don't like this one at all. Okay, people who get so pissed that they can't remember their own names are obviously putting themselves in a vulnerable condition through their own choice, but then I'm not one to lecture about the perils of substance abuse. Regardless of the state you're in though, consent is still a positive action - saying 'yes' - the lack of a negative action is not the same thing. And informed consent requires the person giving their consent to be in a position to judge the consequences of their decision...

I dunno, she decided to get that hammered, but even so... I think the guy is at best an idiot and at worst a shit for sleeping with her in that state even if she did come on to him, and obviously the potential very clearly exists for it to have been entirely non-consensual. The problem is that there's not really any way to tell (is there?), if she's going to get herself into that much of a state that she can't remember anything about it.

I suppose I can take this as ratification of my personal policy of not sleeping with anybody who seems to be drunk, unless we have a well-established sexual relationship already. The fact remains that this shift in legal policy seems worrying to me... I can see more scope for it going wrong than right.

Comments

[burritob.livejournal.com]

I share that policy - it's the smart thing to do. Unfortunately, we don't always do smart things.

Required consent is a sane and rational benchmark - informed consent, however, brings with it a whole raft of problems. As you correctly point out, the latter requires the person giving their consent to be capable of percieving (and accepting) the consequences of that action. Who decides whether or not a person possesses that capability?

If a very drunk girl gives consent to a sober man, we might say that it's his responsibility to say no - it's probably the ethical thing to do. How about if a hot guy gets very drunk and letches onto a real minger? Should she fob him off, on the grounds that he wouldn't give her a second look if he was sober? What do we do when both the guy and the girl are inebriated past the point of rational decisionmaking?

If we are to say that an inebriated person is legally incapable of giving their consent, the offence would become statuatory rape - and that's not something we should be special-casing. Should we require sobriety tests before an individual can enter into a binding contract? How about gambling? Using a credit card?

So I don't think this really indicates a shift in legal policy, although it may well be the first time the precedent has been expressed by the High Court. Indeed, a decision to the contrary would be a great deal more significant.

Considering how this relates to drink spiking in the commission of rape is another interesting point, but that's a whole other discussion :)