by Claude Opus 5.5
Can consent to taking a drug be valid while consent to sex in the same episode is not? What does this show about the scope of consent?
The short answer is yes, and the reasons are more interesting than they first appear. The question matters in the case behind these seminars because one point in dispute is whether the complainant’s drug use was voluntary, and the original decision not to prosecute leaned on a statement describing the conduct as “voluntary, conscious, and consensual”. That phrase runs several different things together. Pulling them apart shows something general about how consent works.
Consent is to something
Consent is never consent full stop. It is always consent to some act, by some person, under some description. If I consent to a dentist filling my tooth, I have not consented to her pulling it out. If I agree to lend you my car for the afternoon, I have not agreed to let you drive it to Scotland. Tom Dougherty calls this the scope of consent: every act of consent has boundaries, and conduct outside those boundaries is not covered, however closely related it may be.
Once this is clear, the question almost answers itself. Taking a drug and having sex are different acts. They may occur in the same evening, in the same room, with the same people. But a valid decision to do the first does not extend to the second, any more than agreeing to come to a party extends to agreeing to whatever happens there.
Why the two decisions can differ in validity
There is a further point. The two acts of consent may not only differ in scope; they may differ in validity, because the conditions for valid consent can be met at one moment and not at another.
Consider the standard conditions: the person must have capacity, must be adequately informed, and must act freely. Suppose someone decides, while sober and among people she trusts, to take a drug. At that moment she may satisfy all three conditions. She understands what she is doing, she knows roughly what the drug does, and no one is forcing her. Her consent to taking the drug is valid.
Now suppose that, an hour later, the drug has taken effect. Her capacity to understand and weigh what is happening is impaired. She may not know who is in the room or what is being proposed. Any agreement she gives to sex at that point must meet the same conditions, assessed at that point, and it may fail them. The earlier valid choice does not carry forward to cure the later defect, because capacity is assessed at the time of the act consented to.
This is the same structure that makes advance consent so difficult. Some philosophers have asked whether a person can consent in advance to sex that will occur while she is unconscious. Most conclude that this is problematic, at least in part because it removes the ongoing ability to withdraw. Whatever one thinks about that debate, a decision to take a drug is not even an attempt at advance consent to sex. It is consent to something else.
Is there a link between the two?
Someone might reply that the two decisions are not independent. If a person takes a drug knowing that it lowers inhibitions, has she not, in effect, chosen to become someone who will agree to things she would otherwise refuse? And does that not give her later agreement some of the authority of the earlier, sober choice?
This argument fails for two reasons. First, choosing to enter a state is not the same as endorsing every decision made in that state. A person who drinks at a wedding knowing she may become sentimental has not pre-authorised every promise she might make in that condition. Second, the argument would make the law of capacity pointless. If voluntarily induced incapacity could be backdated to a sober choice, then anyone who wanted to exploit an intoxicated person would only need to show that she started drinking freely.
There is, however, a legitimate link of a different kind. Whether her drug use was voluntary may be relevant evidence. It may bear on what she could perceive, what she later remembered, and what others could reasonably have believed. If, on the other hand, the drug was given to her without her knowledge, that changes the picture of what others intended. So voluntariness of drug use is not irrelevant. It is relevant to the facts, not to the validity of consent to sex.
What this shows about the scope of consent
Three general lessons follow.
First, consent is act-specific. It attaches to particular acts under particular descriptions, and those acts must be identified with some care. Describing a whole evening as “consensual” is almost always too coarse to be meaningful.
Second, consent is time-sensitive. Its validity depends on conditions at the time of the act, not only at the time of an earlier decision. This is why consent can be withdrawn, and why capacity matters at the moment of the act rather than at the start of the night.
Third, words like “voluntary” and “consensual” are not interchangeable. An act can be voluntary in the sense of not physically forced, while being non-consensual because the person lacked capacity. An act can be consensual in one respect, such as the decision to take a drug, while another act in the same episode is not. When an official document runs these words together, it may be stating a conclusion that its own facts do not support.
For a seminar, a useful exercise is to take a short description of an evening and try to list every distinct act of consent it might involve: to attending, to drinking, to taking a substance, to being touched, to sex with a particular person, to the presence of others, to being photographed. The length of the list is itself the lesson.