Can A Drunk Person Consent to Sex?

Can A Drunk Person Consent to Sex?

Consent is a fluid, ambiguous term that refers to an agreement between two participants to engage in a sexual activity. According to section 74 of the Sexual Offences Act of South Africa, consent is defined as voluntary and uncoerced agreement. 

Consent is reversible and specific; you can decide anytime and moment that you no longer want to participate in the sexual act and you can also consent specifically to sex with a condom, but if the other party removes the condom – that is not consenting. However, drugs and alcohol complicate consent. That’s where the boundaries of consent are often blurred.

A person cannot legally consent to sex if they are incapacitated by alcohol, drugs or any other substance that alters their state of consciousness and causes them to be incoherent. It is possible to give consent when you are drunk, provided that you can still make informed decisions.

Consent becomes more complex when two parties had sex when they were both highly intoxicated and one makes rape allegations because they don’t remember consenting to the act due to blacking out. These kinds of cases become difficult to get a rape conviction because there needs to be proof of lack of consent and the evidence would be based on the two parties that engaged in the sexual act.


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