With updates to regulations and policies, can you consent while drinking alcohol?

2018-05-08 10:46:21 -0400

Sexual Harassment/Assault Response and Prevention
Discussion in our BLC this morning.
There is talk about changes that were made stating that you can in fact drink and still give consent as long as you are not completely drunk. Meaning I have 1 to 2 drinks, that you were not able to consent. Anything that shows this? I have checked AR 600-20 and some SHARP policies and have found no exact information on it.

(Update) Received more information from my SHARP instructor and he stated that it is actually unit based. A way that they can mitigate any issues that may resolve from alcohol.

If anyone has more information regarding this, would be awesome!

Response by SSG Robert Perrotto made May 8 at 2018 12:14 PM

2018-05-08 12:14:37 -0400

As a former SHARP advocate - the best advice I can tell you is this - if there is alcohol involved - don't do it - seriously - you absolutely cannot tell if 1 or 2 drinks do not effect your partners thinking process and in my experience that is whats important - did he/she have the werewithal to give consent. does not matter what you think, or feel - it is all about how the other felt at the time. Hope this helps and be responsible.

Response by CW3 Susan Burkholder made May 8 at 2018 1:15 PM

2018-05-08 13:15:52 -0400

SSG Perrotto gives excellent advice. My advice is usually a lot less sympathetic. I have never understood why some men spend an excessive amount of time trying to figure out if "no means yes." Just move on - it's not worth it. Today's dating rituals are not easier or harder than they were 30-40 years ago - just different. It really doesn't have to be a mystery. Don't take the chance.

Response by SFC Private RallyPoint Member made May 8 at 2018 1:23 PM

2018-05-08 13:23:03 -0400

I don't know who your SHARP instructor was but they're wrong. Right in the newest SHARP slides it says that it is a myth if you have consumed any alcohol you can't consent. There's a slide solely about that.

Article 120 clearly states what is consent and what isn't:

http://www.sapr.mil/public/docs/ucmj/UCMJ_Article120_Rape_Sexual_Assault.pdf

(8) Consent.
(A ) T h e t e r m ‘ c o n s e n t ’ m e a n s a f r e e l y given agreement to the conduct at issue by a competent person. An expression of lack of consent through words or conduct means there is no consent. Lack of verbal or physical resistance or submission resulting from the use of force, threat of force, or placing another person in fear does not constitute consent. A current or previous dating or social or sexual relationship by itself or the manner of dress of the person involved with the accused in the conduct at issue shall not constitute consent.
(B) A sleeping, unconscious, or incompetent person cannot consent. A person cannot consent to force causing or likely to cause death or grievous bodily harm or to being rendered unconscious. A person cannot consent while under threat or fear or under the circumstances described in subparagraph (C) or (D) of subsection (b)(1).
(C ) L a c k o f c o n s e n t m a y b e i n f e r r e d based on the circumstances of the offense. All the surrounding circumstances are to be considered in determining whether a person gave consent, or whether a person did not resist or ceased to resist only because of another person’s actions.

Nowhere does it say if you have had a drop of alcohol or any alcohol you can't consent to sex. Everyone's tolerance is different - so one drink might incapacitate someone where as another person it takes 20 drinks. The key terms are if they are incapacitated, incompetent or unconscious. So if the person you are with is stumbling out the door, barely able to stand and incoherent, don't have sex with him or her.

If you aren't sure if your partner wants to have sex - whether it's a first time hook up or someone you've been in a long term relationship with - don't do it. Don't push it. Just wait until they tell you "YES."

It is not "unit based" either. Article 120 is pretty specific about consent. Bottomline if you aren't getting 100% clear signals on any type of sexual activity then don't proceed.

UCMJ_Article120_Rape_Sexual_Assault.pdf

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Response by SGM Bill Frazer made May 8 at 2018 9:04 PM

2018-05-08 21:04:13 -0400

That's great for the unit- but it won't wash with the regs and that is what will prosecute you, not the unit.