Sexual Assault and Intoxication

Defining (In)Capacity to Consent

Abstract

This article considers how the law of sexual assault in Canada addresses cases involving intoxicated complainants. There are two main aspects to the law of capacity to consent to sexual touching in the context of intoxicated women. The first involves the evidence of intoxication courts typically require in order to prove lack of capacity. The second pertains to the legal standard to which that evidence is applied. The nature of the evidence required to establish incapacity turns on the level of capacity the law requires. A comprehensive review of Canadian caselaw involving intoxicated complainants reveals a legal standard that is too low and an evidentiary threshold that is too high. The result: no matter how severely intoxicated a woman was when the sexual contact occurred, courts are unlikely to find that she lacked capacity to consent unless she was unconscious during some or all of the sexual activity.