In a Dionysian context, consent is not as clear cut as we find it to be if you simply rule that no consent is possible if the person is under the influence of any substance. Consent is still a very black and white issue: it is either present and sex can happen, or it is absent. And naturally it remains something that can be revoked at any point by either party. The murkiness arises from the nature of substance use. I will give several examples to illustrate my point here:

Please imagine yourself as the I, and then someone else as the I, and then another person you know who is as unlike yourself as you can conceive of as the I, for each of these examples.

1) Imagine I were to set out to have a quiet night and I have some shots to get a buzz on, then a few beers to keep it. Because I miscalculated and didn’t eat enough that day, only having had a single bowl of ramen, the drinks hit me like a freight train and now I am drunk; not falling over or slurring, but definitely a bit past tipsy. I see someone I find attractive, we have a few drinks, get talking, and end up partying together and having sex. Did I consent? I went into the drinking not intending to have sex with anyone, but as the night progressed and circumstances changed, my opinion also changed. In this case, one could easily argue that because there was no coercion, no threat, no compulsion, that I had given consent even if that consent was only given because I was swept up in the mood and the drink.

2) I set out to have a wild night and hopefully get laid, I predrink a significant amount, but not enough to be refused access at the door, and get hammered. My desire to get laid does not change, even increasing as my inhibitions are decreased. I find someone who I find attractive and is attracted to me, we drink together, I get them to take me home or get taken home by them (they also find me attractive, so this is not in doubt in this thought experiment) and we have sex. I am aware of this the next morning because through the hangover I can piece this together, as well as waking up in bed with them. Did I consent? I went into the night drinking with the intention of getting laid, I do not believe that intention changed at any point, and I got laid. In this case, one could easily argue the initial intention to consent was there going into the substance use, continued throughout, and because there was no coercion, threat, nor compulsion, that I had given the consent I intended to give, even if I was hammered by that point.

3) I set out to get laid, have a few drinks to limber up the night, go out and have a few more drinks at the party I went to. There I get into a bit of a tough conversation that just tanks my mood and I drink a bit more to keep myself partying and not bringing anyone else down. By now I am no longer in a mood to get laid, but am putting on a cheerful face for the party. I’d already been drunk texting a friend with benefits or previous hook up to come to the party and sleep with me, and I get a notification that they have shown up. I go dance with them and we keep drinking and they make it clear they are excited to sleep together and looking forward to it. I still don’t really feel like it, so I drink and possibly use further substances to put myself right through to hammered so I can pass out. Turned out I didn’t pass out, I just blacked out, lay down for a minute, then got up and kept partying while obviously hammered. My prior hookup gradually herded me to bed again and slept with me and said they were glad I hadn’t flaked on them after getting them all excited. Did I consent? One could easily argue that even though my hookup did not know I was not consenting, I did not consent. That would be an accident on their part, however unfortunate, but the knowledge or ignorance of the other party does not fundamentally alter the fact that in this scenario it could easily be argued that even if my drunken body was able, my mind was not properly present and could not consent, as the conscious intention to get laid had evaporated and never returned. This would be a particularly unfortunate scenario, due to it being sheer bad luck on all sides, from my having gotten back up while blackout, to my hookup (wilfuly or not) failing to pick up on my being way too drunk (though their having picked up that I had not been as into it earlier should have been enough as our next scenario should illustrate).

4a) I go out to have fun, no specific intentions, and get a bit tipsy. I run into somebody I have hooked up with before (to be clear, this person could as easily be swapped in for by a partner or spouse, in all examples of a person hooked up with before across all of these: romantic relationship does not change the nature of consent) and we both express being interested in hooking up later that night. We party and drink and both get decently hammered, and as the night carries on I realize I’m not really in the mood anymore, and I let my hookup know this. They say I may change my mind again, and the partying is fun anyway, and I agree and we carry on. I don’t end up really changing my mind, I just get hammered and later we end up hooking up because I don’t really want to disappoint them and where’s the harm in a bit of drunk sex, my body certainly seems willing enough. Did I consent? One might be tempted to imagine yes, but this is an example of subtle social pressure and expectations: the consent was absent and did not come back with overwhelming enthusiasm and zeal. The hookup should have checked and not allowed it to continue without that insistent enthusiasm being present.

4b) I go out to have fun, no specific intentions, and get a bit tipsy. I run into somebody I have hooked up with before, and we both express being interested in hooking up later that night. We party and drink and both get decently hammered, and as the night carries on I realize I’m not really in the mood anymore, and I let my hookup know this. They say I may change my mind again, and the partying is fun anyway, and I agree and we carry on. As the night progresses, I do feel the off vibe of earlier dissipate and I get horny again, so my hookup and I wind up teasing each other up and end up having sex. Did I consent? I would say yes, and this was marked by my enthusiastic participation and displayed intentions having changed.

5) I set out to have a fun night and hopefully get laid, I’m out drinking and find everyone around me attractive and they are attracted to me, we are all having a good time and I’m chatting up someone and we both go hit the dance floor. Unbeknownst to me, one of their “friends” tries to play a “prank” on them by dropping a bit of molly in their drink, not enough to really hit them, but enough to have a little effect. We sit down and can’t remember whose drink is whose, so I take the initiative and grab a drink and say it is now mine with a laugh. I drink it and the molly takes effect over the next 40 minutes. This makes me much more energetic, makes me thirstier, I drink more than I intended to, get drunk quicker, scare away the person I was hitting on and who was hitting on me because I am coming off as a bit more difficult to handle than they initially thought (due to the substance). Some other unrelated attractive person I dance with and I end up going and having sex. Did I consent? One could argue both sides, pointing out the molly had a minimal effect and so I otherwise acted as I would have and I went into it with the intention to consent and that intention did not change. But the issue is the substance done without my knowledge or my consent, and which did not overwhelm, but did influence my decisions, as well as that the individual I had intended on consenting to have sex with was not who I ended up having sex with. A good guideline for this would be to consider anyone under the influence of a substance they did not intend to be using and are using without their knowledge, should not be assumed to be consenting, especially if they are going with someone they were not already intending to go with prior to the unwanted substance. Just don’t give people drugs without warning them, informing them, and getting their permission.

6) I go out intending not to get laid, explicitly, and proceed to get moderately drunk, at which point I begin to change my mind, duck away from the people who I am out with, and go get hammered and sleep with someone. Did I consent? One could certainly argue yes, for similar reasons to 1), but in this case there is the further wrinkle that my sober self did not want to get laid… the thing is, drinking reduces inhibitions and if my opinion on the matter changed that dramatically without coercion, just by drinking and seeing attractive people, then I would argue I did consent, particularly as I was not hammered when my mind changed.

Naturally, in all of these, the other party is to be assumed to be enthusiastically consenting. Similarly, in any case where there is coercion, threats, or other compulsion being applied to the subject, they cannot consent. If they are a nonhuman lacking equal intelligence, comprehension, and experiential understanding equal to or greater than an average 18 year old human, and/or lacking the capacity to clearly and unambiguously communicate their consent, they cannot be considered to have consented to sexual interaction at all. If they are a child, they cannot consent.

It is also worth noting that ultimately whether or not any person is consenting comes down to that person, and if someone claims to have not given consent, it should require very strong grounds to ever assume they are being less than: honest, courageous to be speaking out, and deserving of support.