By Lillie Coussee
It’s Friday night around 10 p.m. You’re in your washroom with your two roommates getting ready for a night out on King Street. Music is blaring through your phone and the ‘two-six’ of Smirnoff Vodka makes its way from the top of the fridge into the three red solo cups on the counter. Cheap vodka always produces an entertaining night. Feeling buzzed, you hop on the streetcar prepared to take on the city.
Upon arriving at the first location, you immediately lock eyes with a total babe across the bar. You’re nervous to talk to them, so you order a shot to calm the nerves and wash it down with another for good luck. Words are never spoken but looks are exchanged and you’re getting the vibe they’re into you.
They’re getting closer and you can feel your heart beating faster. What’s another shot for good measure? You exchange names and programs, then make small talk for what feels like two whole minutes. The next thing you know, you’re following them into the back corner of the bar. They start touching and kissing you, and you’re into it. Surely, this was all consensual, right?
Consent and alcohol may not go hand-in-hand in some people’s minds. The reality is many students engage in some kind of sexual activity while under the influence, says Samantha DeFranco the support coordinator at the Centre of Safer Sex and Sexual Violence at Toronto Metropolitan University (TMU).
She says consent is either verbally exchanged or given by watching for body language and using fair judgment.
“It doesn’t have to be this kind of verbal, ‘Yes, I consent,’ like a robot, but we’re paying attention to what people maybe aren’t saying,” DeFranco says.
Visual cues such as moving hands away, shutting down conversation and leaning away from a potential partner are a good indication that that person may not want to engage in any sexual activity, and these apply while intoxicated and sober, she further explains.
Razan Aziza, a first-year philosophy student at TMU, says while sex can be a big deal to individuals, it can also be a fun way to explore and express yourself.
“Sex is a part of you and you’re giving that part of you to somebody else…[and] letting them see a very vulnerable side of you,” she says.
With various substances in the mix on a night out, it can be tricky to determine if your partner feels safe. Aziza says being open and constantly communicating is key to ensuring everyone enjoys themselves.
“Dialogue is so, so important to [instill] consent,” she says.
Aziza has many experiences learning about consent—some good, some uncomfortable. She says people have overstepped her boundaries before, especially while under the influence of some kind of substance. Having conversations with her partners before engaging in any sexual activity is what makes her feel most comfortable—both while intoxicated or sober.
She says as long as everyone involved feels comfortable and respected, having sex under the influence can be enjoyable and should be okay to experiment with.
“IF YOU’RE TOO DRUNK TO DRIVE, YOU’RE TOO DRUNK TO CONSENT”
According to TMU’s sexual violence policy: “Consent must be affirmative, ongoing, informed, respectful and engaged.” It also states that “consent cannot be given by a person who is incapacitated by alcohol or drugs.”
There is no legal standard for what it means to be intoxicated, creating a “grey area” for people to determine whether someone is capable of consenting or not, DeFranco says.
“Generally, if you’re too drunk to drive, you’re too drunk to consent,” she says.
However, this is not the law in Canada. The Criminal Code of Canada—Section 273.1—states “consent means… the voluntary agreement of the complainant to engage in the sexual activity in question.”
The Supreme Court of Canada (SCC) said in R. v. G.F. that a person’s capacity is a precondition to consent. A court judge may ask a complainant if they consented to a sexual act first, then ask if their level of intoxication invalidated their response.
The SCC stated that a person must understand the following to be capable of consent: “As capacity is a precondition to subjective consent, the requirements for capacity are tied to the requirements for subjective consent itself.”
A Toronto-based criminal defence lawyer* says every case is different and ultimately it’s up to the courts to decide whether a person is incapable of consenting. They say “under the influence” is a meaningless definition, and rather, it’s a question of capacity. The capacity to consent is determined by case law, they say.
Max Rose, a first-year history student, makes an effort not to get drunk or high enough to engage in an activity he would not remember. He says if someone is tipsy and aware of what they’re doing, then the lines become blurry. Generally, he tries to steer clear of any “potential mistakes.”
“People know that [sexual assault] happens, so I would expect our generation to try to be more aware of this stuff,” he says.
However, the ethics and laws behind sex under the influence are subjective and are different for everyone.
Dina Haddish, a members’ coordinator at the Ontario Coalition of Rape Crisis Centres, says not a lot of youth experience sex-positive education. She says the ability to have the capacity to consent relies on individuals having the behavioural skills to navigate a sexual relationship.
“The biggest piece especially [for] undergraduate students is affirmative sexual education that includes what consent [is], but then also what healthy sexual exploration [is],” she says.
Haddish says students may feel more open to exploring their sexual desires while intoxicated because they are not given a culture of enthusiastic sexual education that focuses on desires and pleasure.
“Facilitating spaces that feel judgment-free and open spaces for students to discuss topics like sex and consent and the way that alcohol interacts with that is really, really important,” Haddish explains.
She also says this is not an individual issue but rather a systemic issue and it takes more than one person to combat unwanted and unsafe sex. The responsibility falls on everyone to create a safe space for sexual exploration, the safe use of substances and to end sexual violence.
Hamza Herzalla, a third-year marketing management student at TMU had to intervene in situations that did not seem okay in places where substances were in the mix. As a Muslim, Herzalla does not use any substances, but consent is still a topic of mind and Herzalla understands when a situation is going down the wrong path.
“Sometimes, [bystanders] need to take it into their own hands to step in and say, ‘Hey, this doesn’t look right.’”
Herzalla understands that people may enjoy having sex under the influence, as long as everyone involved can express their boundaries and communicate with each other.
“Whatever situation it may be…[we] always have to look at the bigger scope of things and understand that we’re all human and we shouldn’t take advantage of each other,” Herzalla says.
Sex under the influence is not a new concept, nor is consent. It’s important to allow individuals to make informed decisions about their sex life while exploring their sexuality. Alcohol and drugs can help people break barriers for themselves, but they can also lead to an unforgiving night.
After learning from experience, Aziza says constant communication with your partner(s) leads to good experiences. If you or your partner are unable to communicate coherently, sex should be off the table.
“Allowing new generations to explore sex in a way that helps them grow as people and not feel shamed or scared [is important]…just don’t do anything that makes somebody else feel uncomfortable.”
*Due to the sensitivity of the matter and the ever-changing discussion surrounding consent, this lawyer has asked to remain anonymous to protect their reputation. The Eyeopener has verified this source.