Abstract

A man who has sex with a woman who has passed out after consuming vast amounts of alcohol is undeniably guilty of rape. Equally, a man who has sex with a woman who is slightly tipsy after consuming a small amount of alcohol, but who later regrets their lovemaking, is innocent of this crime. This paper is devoted to examining sexual encounters, in which the woman's judgment is significantly impaired by alcohol, that fall in between these two extremes. She slurs her words, is unsteady on her feet, and the next day remembers little about the night before. Does such "impaired sex" constitute rape? An approach that stresses women's responsibility for their own actions would deny that any sexual offense has occurred, since the woman who later regrets their night together has failed to make clear her wishes about sex. In contrast, Lois Pineau's "communicative sexuality" model puts the burden on men to ensure that their partners really do consent to sex. This second model gives us good reason to believe that men are morally obligated to refrain from impaired sex, since they lack evidence that their partners' acquiescence to sex is autonomous. However, we would do better to deal with impaired sex by means of moral disapproval and educational measures rather than by legal sanctions.