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Legally, having sex with someone who is incapacitated is equivalent to having sex with someone who is unconscious, as they lack the required mental state to form a valid agreement What if person a wanted to have sex with person b, but then got too drunk to consent, and person a had sex with them anyway? A person can be drunk and still possess the capacity to consent

However, once they cross the threshold into incapacitation, any apparent agreement is legally invalid. The criminal code says it’s a crime to have sex with someone who’s too drunk or high to consent, even if the person doesn’t resist or fails to say “no.” Having sex with a person who has consumed alcohol is not necessarily rape, many if not most couples have sex for the first time under the influence of alcohol

The question, as others have pointed out, is whether the person had sufficient capacity to consent given her mental state

If not, than it is rape. Frequently asked questions about drunk sex, consent, and us law how does being drunk affect legal consent Legally, a person cannot give consent if they are incapacitated Intoxication from alcohol can cause incapacitation, meaning the person lacks the physical or mental ability to understand the nature or consequences of the sexual act

Is having sex with a drunk person always illegal Can a person give consent to sex while intoxicated Home » blog » alcohol in america » can a person give consent to sex while intoxicated With stories such as the steubenville high school rape case spreading through social media and news coverage, the topic of rape has come to the forefront in people’s minds.

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