Do you have trouble remembering what happened last night? Maybe you went to a bar with friends, had some drinks and danced, and then your memory becomes unclear. You don’t recall leaving the bar, getting home, or certain events that happened during the evening.
Alcohol-related memory gaps can happen. But the situation becomes much more serious when an allegation of sexual assault arises from events that occurred while one or more people were intoxicated.
What happens when someone alleges that sexual activity occurred without their consent? What if you have little or no memory of what happened? What if you remember the encounter, but the other person was heavily intoxicated?
Alcohol can make sexual assault cases considerably more complicated, particularly when the central issue is consent.
Does Being Drunk Mean Someone Cannot Consent?
No. Simply consuming alcohol does not automatically mean a person is incapable of consenting to sexual activity.
There is a difference between being intoxicated and being incapable of providing consent.
A person who has consumed alcohol may still be capable of understanding what is happening and making decisions about sexual activity. However, there can come a point where a person’s level of intoxication leaves them incapable of providing consent.
Someone who is unconscious cannot consent. A person may also be incapable of consenting even though they have not completely lost consciousness.
The issue in a sexual assault case may therefore become whether the complainant had the capacity to consent at the time the sexual activity occurred.
How Do Courts Determine if Someone Was Too Intoxicated to Consent?
There is no specific number of drinks that determines whether someone had the capacity to consent.
Courts may consider a range of evidence concerning the person’s condition and behaviour at the relevant time.
Depending on the circumstances, this could include:
- The amount and type of alcohol or drugs consumed
- How long the person had been consuming alcohol or drugs
- The person’s behaviour during the evening
- Whether the person appeared aware of their surroundings
- Their ability to communicate
- Their physical coordination
- Their interactions with other people
- What they remember about the events surrounding the alleged offence
- Witness observations
- Video footage
- Text messages or other communications
The issue is highly dependent on the facts of the particular case.
Does Blood Alcohol Concentration Determine Capacity to Consent?
Blood alcohol concentration, commonly called BAC, may provide information about the amount of alcohol in someone’s bloodstream. However, BAC alone does not determine whether someone had the legal capacity to consent to sexual activity.
People can also respond differently to alcohol.
Factors such as how quickly someone drank, their tolerance to alcohol, medications or other substances they consumed, and individual physical characteristics may affect their level of impairment.
This is why courts generally need to consider the complete circumstances rather than relying on a single number.
What if Someone Cannot Remember What Happened?
Memory can become an important issue in sexual assault cases involving alcohol.
A person may remember drinking, dancing, speaking with friends, or other parts of an evening but have no memory of what occurred during a particular period.
A lack of memory does not necessarily establish that the person was incapable of consenting at the relevant time.
Someone experiencing an alcohol-related blackout may have been conscious and interacting with other people despite later being unable to remember those interactions.
At the same time, a memory gap may be relevant evidence when considered alongside evidence concerning the person’s overall level of intoxication.
This is where other evidence can become particularly important.
What Evidence Can Be Important When Alcohol Is Involved?
When memories are incomplete or the people involved provide very different versions of events, evidence from other sources may help establish what happened.
This could include:
- Security footage from a bar, restaurant, hotel, or residence
- Cellphone videos
- Photographs
- Witness statements
- Text messages sent before or after the alleged incident
- Social media messages
- Phone records
- Ride-share records
- Debit or credit card transactions
- 911 recordings
- Police body-camera footage
- Medical evidence
For example, text messages exchanged shortly before or after the alleged sexual activity may provide context about the relationship between the parties and what each person was saying at the time.
Video footage may also provide evidence about someone’s physical condition, behaviour, or interactions with others during the evening.
No single piece of evidence necessarily determines what occurred. The evidence must be considered in the context of the case as a whole.
What if Both People Were Drinking?
The fact that both people consumed alcohol does not remove the requirement for consent.
It is also important to understand that an accused person’s own voluntary intoxication cannot be used as the basis for claiming that they mistakenly believed the other person consented.
Section 273.2 of the Criminal Code places limits on when an accused can rely on a belief in communicated consent. Among those limits is a belief that arose from the accused’s self-induced intoxication.
In other words, saying, “I was too drunk to realize they weren’t consenting,” does not by itself provide a defence to a sexual assault allegation.
The circumstances surrounding the alleged communication of consent can therefore become extremely important.
Can Someone Initially Consent and Then Change Their Mind?
Yes.
Consent must exist at the time the sexual activity occurs. A person who initially agrees to sexual activity can later withdraw that consent.
This can become particularly important when alcohol is involved.
For example, someone may be capable of consenting earlier in an evening but become increasingly intoxicated over time. Someone may also initially consent to certain sexual activity and later communicate that they no longer want it to continue.
Consent to one sexual act does not automatically amount to consent to another.
The events must therefore be examined in their proper sequence.
What if the Two People Remember the Night Differently?
Alcohol can make this particularly difficult.
The complainant may remember certain portions of the evening but not others. The accused may provide a different account. Witnesses may have incomplete recollections because they were also drinking.
A court may have to consider the credibility and reliability of these accounts alongside independent evidence.
This is why records created at or near the time of the alleged incident can become particularly important.
Messages, videos, photographs, receipts, phone records, witness observations, and other evidence may provide information that neither party can clearly remember later.
What Should You Do if You Are Accused of Sexual Assault After a Night of Drinking?
A sexual assault allegation involving alcohol can have serious consequences.
If police contact you about an allegation, be cautious about attempting to reconstruct events for them when your memory is incomplete. Statements made during an investigation can later become evidence.
You should also avoid contacting the complainant to ask what happened or attempt to resolve the situation yourself.
Preserving potential evidence can be extremely important. Text messages, photographs, videos, receipts, location records, and other information from the evening may later assist in establishing what occurred.
Speaking with a lawyer before providing a detailed statement to police can help you understand your rights and the allegations being made against you.
Charged With Sexual Assault in a Case Involving Alcohol?
Alcohol does not automatically make someone incapable of consenting. However, a person who has become incapable of making the required decision cannot legally provide consent to sexual activity.
Determining where that line was crossed can become one of the central issues in a sexual assault case.
The person’s level of intoxication, behaviour, communications, memory, witness accounts, video footage, and events surrounding the alleged encounter may all become relevant.
If you are facing sexual assault charges involving alcohol or drugs, A. Dhillon Law can review the circumstances, examine the available evidence, and explain the defence options that may apply to your case.
A. Dhillon Law represents people accused of sexual assault and other criminal offences throughout Southern Ontario. Contact A. Dhillon Law to schedule a consultation.
