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Legally, having sex with someone who is incapacitated is equivalent to having sex with someone who is unconscious, as they lack the required mental state to form a valid agreement Here are answers to some of the trickier questions around drinking, sex and consent. A person can be drunk and still possess the capacity to consent
However, once they cross the threshold into incapacitation, any apparent agreement is legally invalid. Navigating sex can be complicated, especially if alcohol or other drugs are involved Having sex with a person who has consumed alcohol is not necessarily rape, many if not most couples have sex for the first time under the influence of alcohol
The question, as others have pointed out, is whether the person had sufficient capacity to consent given her mental state
If not, than it is rape. If every person partaking in a sexual encounter is drinking, it is important that all parties — especially the party that initiates sex or a new sex act — are continually and repeatedly. An incapacitated person due to intoxication cannot legally consent This state can include being passed out, incoherent, or unable to control physical movements.
The intersection of alcohol and sexual consent is a complex legal issue The law defines consent and clarifies how intoxication affects a person’s ability to give it When both parties have been drinking, the situation requires an examination of each person’s capacity The legal system applies fundamental principles of consent to the specific facts of the case
A person can be under the influence of alcohol and still be able to make decisions and communicate, but if a person is so drunk that he or she cannot actively consent to sex, then most people will consider it rape.
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