Alcohol Intoxication in Rape Allegations and Legal Defenses

by David J. Hanson, Ph.D.

Allegations of rape and other forms of sexual assault are often based on the argument that the alleged victim had been drinking and, therefore, was not competent to give consent for sexual activities. Similarly, alleged perpetrators sometimes claim that they were not responsible for their actions because they were intoxicated and had no control over their behavior. However, there is evidence that people are able to make reasoned judgments at higher levels of intoxication than generally believed.

Many of the effects of alcohol are a result of our expectations that it will affect us in certain ways. We learn these expectations from our society. For example, in those societies in which people don't believe that intoxication disinhibits, intoxicated persons don't become disinhibited. ¹

Dr. Donald Marshall has explained that

the pharmacological effects of alcohol on human beings make people feel different from when they haven't imbibed. The meanings given to this experience, i.e., how one interprets these feelings and orders his experience, are provided by the culture in which one is a participant. If the culture holds that imbibing alcohol produces warm feelings of community solidarity, harmony, and camaraderie, then violence and sexual advances will have no place (e.g., Brandes, 1979). If, on the other hand, the cultural tradition suggests that the drinker will feel aggressive and sexually aroused and, furthermore, will not be held accountable if he acts upon these impulses, then aggression and overt sexual advances are likely to result from drinking (e.g., Hamer, 1980). Thus, alcohol as a drug can be viewed as an enabler or a facilitator of certain culturally given inebriate states, but it cannot be seen as producing a specific response pattern among all human beings who ingest it. ²

Dr. Robin Room ³ explains that "Because intoxication is culturally regarded as causing obstreperous or evil behavior, getting drunk indeed has these effects and, to an extent, legitimates them; a desire to be obstreperous many thus motivate a drunkenness episode." "As one man in a violent offender program noted, ‘When I first came to your program I told you that I hit my wife because I was drunk; now I realize that I drank so that I could hit her.' He realized that alcohol did not excuse or even explain the abuse. Instead, alcohol was the way that he had tried to avoid responsibility for the abuse." ⁴ Dr. Scott Hampton, a violence prevention expert, observes that in our society "Alcohol acts as a permission slip." ⁵

Research in the US has long found that when males are falsely led to believe that they have been drinking alcohol, they tend to become more aggressive and sexual. And when men and women falsely believe that they have been drinking alcohol, they experience greater sexual arousal when watching erotica. In doing so, they conform to societal beliefs about the effects of alcohol. ⁶

Researchers at the University of Waterloo in Ontario asked volunteers to press a button when prompted by a computer screen. They were also instructed not to press it if a red light also appeared. Those who were given alcohol were more likely to press the button in spite of the red light, just as a drunk is more likely to punch someone even if told to stop. However, when drinkers were offered a small reward, they performed as well as sober volunteers. The researchers found that people who have been drinking can control their behavior if they want to. ⁷ Similarly, in an experimental study conducted by Prof. Catherine Ortner and her team of psychologists at Queen's University in Kingston, Ontario, divided male college undergraduates students into three groups: sober, intoxicated, and a control group who received drinks flavored with alcohol but not enough to intoxicate.

It was hypothesized that the intoxicated group would select immediate rewards over delayed, but greater, rewards. All students were given the chance of receiving $15 at the end of the session or $30 later.

Contrary to expectations, the intoxicated students were more likely to defer gratification and select the $30. Thus, our common assumption that intoxication necessarily leads to rash decisions may not be correct In the authors' words, "alcohol does not always increase cognitive impulsivity and may lead to more cautious decision-making under certain conditions." ⁸

The findings reflect those of Prof. Tara MacDonald at Queen's University. Dr. MacDonald said the findings support other findings that drunk people are not inherently more irresponsible than sober people.

These studies are consistent with both experimental and cross-cultural evidence demonstrating that intoxicated people have much more control over their behavior than is generally recognized in our society.

People have more control over their drunken behavior than we generally recognize in Western society. For example, the Lepcha people of the Himalayas tend to become sexually promiscuous when intoxicated... that behavior is acceptable when drunk. But violation of the incest taboo (which extends very far and is highly complex) leads to punishment by certain death. No matter how drunk they become and how promiscuous they behave, they never violate that complex taboo. It's simple... they don't want to be executed and suffer a painful death so they control their behavior no matter how drunk they become. ⁹ In Western societies intoxication tends to be treated as a "time out" period during which time people can engage in otherwise unacceptable behaviors and then later argue that they didn't know what they were doing or that "the alcohol made me do it."

Because of this, intoxication has often been used as an excuse for sexual aggression. But alcohol doesn't actually disinhibit us and doesn't rob us of our good judgment... although people commonly blame their unacceptable actions on it.

In reality, intoxication doesn't make us do anything against our will and it doesn't prevent us from making rational decisions. Claiming so is only making a convenient excuse for our actions.

We cannot accept defendants' claims that because of intoxication they didn't know what they were doing, had no control over their actions, and shouldn't be held accountable for their behavior. This fact is now recognized in our society.
Similarly, we can't blindly accept alleged victims' claims that they were unable to give informed consent for sex simply because they had been drinking.

Of course not all of alcohol's effects are based on expectations. The substance has real physiological effects -- it slows reaction time, it slows breathing and heart beat, it effects perceptions of time and distance, etc. But the fact that alcohol has these effects helps convince us that it makes us aggressive or whatever else our society teaches us that it does.

Intoxication has long been used as an excuse for engaging in otherwise unacceptable behaviors. However, it doesn't destroy the ability to make rational judgments and it doesn't cause bad behavior. Therefore, it isn't a legitimate excuse for otherwise unacceptable actions.