Alcohol and consent

Disclaimer: This article does not provide legal advice. If you or a loved one have experienced sexual assault call 1800RESPECT for support and guidance.

Over the past few years, Australia has been having important conversations about consent and state governments are taking action. In November 2021, the New South Wales Government passed affirmative consent laws and the Victorian Government is now set to follow suit.¹

Based on recommendations from the Victorian Law Commission’s report, legislation will be introduced next year to adopt an affirmative consent model for sexual offences.²

Affirmative consent means that people have to actively find out if their partner(s) are consenting to sexual activity. This takes the burden off victims/survivors to prove that they did not provide consent.

This step forward highlights the importance of having a practical understanding of what consent means in our daily lives, including how alcohol impacts consent, as we build a culture of positive, respectful relationships - and a safe and inclusive society.

What is consent?

Consent is a really complex topic. There’s a lot to unpack about how consent is affected by sex, gender identity, sexuality, socio-economic position, age, ethnicity, and dis/ability. But in this article, we’re specifically focussing on how alcohol affects consent.

What consent means

A practical way to understand consent is the FRIES model used by Planned Parenthood:

• Freely given
• Reversible
• Informed
• Enthusiastic
• Specific.

Consent is about the ongoing communication of ‘yes’ - not the absence of ‘no’.

But consent is much more than specific words.³

The context in which consent is given and received and the specific relationship between the people giving and receiving it has a huge impact on if people can freely give consent and be able to reverse it.^4-6

In current Victorian law, a person is not considered capable of giving consent if: “the person is so affected by alcohol or another drug as to be incapable of consenting to the act.”⁷

So, what does that mean if people are drinking alcohol?

Can you consent when drunk?

Consent can’t be ‘freely given’ if you’re too intoxicated. Everyone needs to actively consider how the effects of alcohol can impact a potential partner’s capacity to give consent.

Even in small amounts alcohol reduces inhibitions.

How intoxicated a person is will depend on how much alcohol they’ve drunk and how quickly; if they’ve eaten recently; and, their overall size and weight.⁸

In larger amounts alcohol can cause a loss of coordination and balance, slurred speech, and impaired judgment.⁷

Other signs of intoxication include short-term memory impairment (this can look like circular or repetitive conversations) and delayed reactions or sleepiness.

Recognising and respecting the times when someone is too intoxicated to be able to give consent is part of being a good human.

If you’re worried that someone is too intoxicated to consent, they probably are.
It’s always better to err on the side of caution than risk violating another person.

Whether you’re on a date, at a party or have met someone while you’re out, don’t pursue anything with someone who is too intoxicated to give consent.

You can always swap phone numbers and make sure they get home safely (or phone a friend or a family member of theirs, if they’re really intoxicated and alone).

You’ll then have a chance to reconnect later, when it’s safe and fair for everyone.

Consent can’t be reversible if you’re too intoxicated

Another critical aspect of consent is that it must be reversible at any time – a person should always be able to choose to stop what they’re doing or they aren’t really consenting.

A person needs to be able to understand what’s happening and be capable of stopping it if they want to.*

Because of the way alcohol is absorbed in the body, a person continues to become more intoxicated after their last drink.

For example, if you have a last couple of drinks at the bar and then head to someone’s home, on the way there a person can become more intoxicated as their body absorbs those last drinks.

This means even if the person consented to sex at the bar and agreed to go back to someone’s house, it is not the same as consenting to sex when you actually get there. By the time you get to the house, they could be too intoxicated to continue to give consent.

This could also happen while you’re having sex or leading up to having sex - if it does, you need to stop.

So, consent is not a one-off, it needs to be an ongoing agreement.

That means we all need to continue paying attention to how intoxicated our partner(s) seem. Are they coordinated? Is their speech slurred? Are they alert or falling asleep?

It is impossible to consent if you don’t know what’s happening.

What if all parties are intoxicated?

Being drunk isn’t considered an excuse for most behaviours, such as violence, theft, driving and property damage. So, why should consent be any different?

Under current Victorian Law, if you’re intoxicated, you’re still held to the same standards as a person who isn’t intoxicated.⁷

Want to avoid this being a concern?

Following the Australian alcohol guidelines of no more than 10 standard drinks a week and no more than 4 standard drinks on any single day (in particular, the no more than 4 standard drinks a day rule) will help.

What to remember about alcohol and consent

The bottom line is: it’s never up to someone else to tell you ‘no’.

Alcohol makes consent harder to navigate, so if a potential partner has been drinking alcohol it’s up to you to recognise and respect if they’ve had too much to give consent.

Quite simply, it’s all about just being a good human being.

More information on consent

• 1800RESPECT has a detailed page on understanding consent
• The Line, a website focused on young people 14+, which explains consent
• The Australia Institute video interview with consent advocate Chanel Contos
• Body Safety Australia for a range of resources for a younger audience

* There is much more to this question than just the influence of alcohol, including fear of a partner becoming angry or even violent if a person indicates they want to stop.