Does being drunk negate consent? According to the laws of the Australian Capital Territory, the answer is yes. In many states and territories, the law holds that those who are extremely intoxicated cannot give consent. But in the ACT, if someone has consumed any alcohol at all or taken any drug, they are legally unable to give consent.

Of course, in the way we actually live our lives, it seems impracticable to never drink alcohol before having sex. Alcohol is ever-present in our social lives: it is an indispensable social lubricant, the egalitarian leveller which ensures that all of us who drink share the opportunity of making a fool of ourselves on a Thursday night. As much as this drug may be socially undesirable, it is so much ingrained into Australian society and tradition that not even Canberra’s most idealist legislators can get rid of it.

Not being a lawyer, I am not able to comment from a legal perspective, but from a moral one: how can one behave ethically and morally when they are in situations where one or both of the parties in a sexual encounter are intoxicated? How can you ensure you maintain respect and consent when you or the other parties’ judgement is compromised or under the influence? The answer is to reframe and rethink consent and sexual approaches, to err, enthusiastically, on the side of consent and caution, and to fundamentally conceptualise consent as being an ongoing and positive process of reaffirmation, building trust and communication.

In sexual situations where alcohol is present, we need to be especially careful that people are genuinely consenting. Enthusiastic consent, treated with extra caution due to the presence of intoxication, is defined by the notion that “yes means yes”, rather than “no means no”. Genuine trust and communication is incredibly sexy, since the encounter will likely be far more intimate and profound.

What does ongoing communication look like in this situation? Consent is firstly, a continuous and proactive search for non-verbal signs that indicate enthusiasm. In other aspects of life, we tend to err on the side of caution. If someone seems unsure about going on a coffee date, you realise that neither you nor they are going to have a great time if you attempt to go through with it. As Melanie Boyd, a feminist thinker, says, “we seek confirmation of willingness” out of a visceral need for mutual agreement and consensus. “In media res, agreement is clear”, she says.

But when one or both parties are drunk, verbal signs assume a new, crucial importance. Verbal confirmation requires a more coherent, distinct decision-making thought process. It raises a certain momentary discomfort, which provides a moment for both/all parties to become more aware of their surroundings and the situation. It provides a context for all to evaluate whether the giving of consent was both actively intended and clearly interpreted.

Putting aside the thorny question of how the law might be interpreted, we need to be sure that at all times, going beyond the dictates of the law, that we behave in ways that uphold the dignity and agency of those we interact with. The best way to do that is through ensuring that enthusiastic, affirmative consent is given in an ongoing fashion throughout a sexual encounter. “Consent isn’t a question. It’s a state,” argues Jaclyn Friedman, a key advocate for affirmative consent. Enthusiastic consent is not just a legal requirement, but an ideal standard that we should all strive towards.

Illustration: Henry Dwyer