We regularly get asked questions around intoxication, rape and consent. We understand that a discussion of these issues likely involve stigma and victim-blaming. Rape culture often leads to survivors being blamed for their own rape because they were drunk. This is extremely unfair and could mean that survivors might sometimes even be unsure if they were raped or feel that they are to blame and then don’t report.
Not only is this socially complex, but even the legal position can be quite complicated. In the below discussion, we aim to provide a short outline of the legal position regarding intoxication, rape and consent:
Currently, the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 governs the legal position regarding rape and a range of other sexual offences. Section 3 of the Act provides the following definition for rape:
“Any person (‘A’) who unlawfully and intentionally commits an act of sexual
penetration with a complainant (‘B’), without the consent of B, is guilty of the offence of
From the above, it is clear that the absence of consent is a vital element of the definition of rape. If complainant/ survivor did not consent to the sexual act, then A will be guilty of rape.
This begs the question: “What is consent?” Luckily, the Act provides the answer in Section 1(2) by explaining that consent entails a voluntary and un-coerced agreement. For consent to be present, both persons has to enter into a voluntary agreement to partake in sex.
The Act also states that there are circumstances in which someone (B) cannot give voluntary and un-coerced consent. If there is therefore a sexual act under these circumstances, it was not consensual. These circumstances include:
- Where someone uses force or intimidation against B or another person or their property
- Where someone threatens to harm B or another person or their property
- Where there is an abuse of power or authority by someone to the extent that B cannot indicate his/her unwillingness to participate in the sexual act.
- Where B is incapable of appreciating the nature of the sexual act, including where B is, at the time of the commission of such sexual act asleep, unconscious, or in an altered state of consciousness. This could be due to the fact that B is under the influence of any medicine, drug, alcohol or other substance to the extent that B’s consciousness or judgment is adversely affected.
For our discussion it is important to understand that, if someone is in an altered state of consciousness due to being under the influence of medicine, alcohol or drugs to the extent that the person’s consciousness or judgment is adversely effected, that person cannot consent to sex. If someone therefore had sex with you while you were so drunk that your consciousness or judgment was severely affected and you were incapable of appreciating the nature of the act, the sex was non-consensual and could amount to rape.
The above position clearly highlights that someone who has sex with a person who is drunk or unconscious and therefore cannot understand the nature of the sexual act, is a perpetrator of rape. No survivor should ever be discouraged to seek help, get counselling or report a rape even if you were drunk the time. Remember: Being drunk is not a crime, rape is a crime.
By Jeanne Bodenstein
Jeanne is Rape Crisis Cape Town Trust’s Advocacy Coordinator. She is an admitted attorney and lover of pizza and red wine.