The Sexual Assault of Intoxicated Women

This article considers how the criminal law of sexual assault in Canada deals with cases of women who are intoxicated. In particular, it considers under what circumstances the doctrines of incapacity to consent and involuntariness have been applied to cases in which the complainant was impaired by alcohol or drugs. Some men continue to use alcohol as a way of gaining sexual access to women, and young women are encouraged to render themselves intoxicated as part of having a good time. A review of Canadian cases reveals that the threshold for incapacity to consent is set much higher in cases where the intoxication is voluntary, even though the Criminal Code makes no such distinction. This background suggests that women's decisions to drink and take drugs are implicitly understood as a sort of partial advance consent to sexual activity. Where capacity is not contested by the Crown, proof of non-consent may be complicated by the complainant's memory loss. Where the complainant cannot provide an account of what happened, it is also easier for the defence to sustain a mistaken belief claim. The role of race, age, and pornography in these assaults is also briefly considered.