The “Cornell 7” case has brought the issue of sexual consent when someone is under the influence of alcohol or drugs back into the spotlight. A former Cornell University student in the United States claims in a civil lawsuit that several fraternity members drugged and sexually assaulted her in 2024. The criminal investigation has recently been reopened. So far, no criminal charges have been laid against the men involved.
The case took place in the United States, where the law is different. But it raises a question that also applies in Canada: Can you consent to sexual activity after consuming alcohol or drugs?
Important!This article discusses sexual violence and may be upsetting to read. If you need support, you can contact the Sexual Violence Helpline at 1 888 933-9007 or through its online chat service. In an emergency, call 911. |
Consent means voluntarily agreeing to take part in a sexual activity. Consent must be clear, informed and given freely, without pressure. Most importantly, silence or not physically resisting don’t mean yes.
Having had sex with someone before or being in a relationship with them doesn’t mean you can assume they consent to sexual activity. You must take reasonable steps to make sure the other person consents. For example, you can pay attention to their body language and clearly ask them whether they want to take part in the sexual activity.
Can you consent when you’re under the influence?
It depends on the person’s condition at the time of the sexual activity. Among other things, to be able to consent, a person must be able to understand:
- what activity they’re being asked to take part in,
- that the activity is sexual,
- who they would be engaging in the sexual activity with,
- that they can choose whether to take part or refuse.
This means that someone who no longer understands what’s happening, or who is unconscious or asleep, cannot consent. Their consent is not valid, even if they gave it before becoming intoxicated, losing consciousness or falling asleep.
If someone seems very intoxicated, confused or unable to clearly express what they want, sexual activity should stop. Their safety must come first. Stay with them, contact someone they trust or call 911 if their condition is concerning. If the situation isn’t an emergency, you can also call Info-Santé at 811 to get health advice.
There isn’t a specific number of drinks, amount of drug or level of intoxication that automatically makes someone unable to consent to sexual activity. Substances don’t affect everyone the same way.
What if both people drank or used drugs?The same rules apply. Having consumed alcohol or drugs isn’t an excuse for assuming that the other person consented when they didn’t. Each person must make sure the other person consents to the sexual activity. |
How do courts determine whether someone was able to consent?
When a case goes to court, the judge must determine whether the person was able to consent at the time of the sexual activity. This can be more complicated when alcohol or drugs are involved. For example, the person may have gaps in their memory or not remember a part of the evening.
The court examines the whole situation to understand what happened. For example, it can consider:
- what the person remembers before or after the sexual activity,
- what the person said or did,
- what other people saw or heard,
- messages, photos or videos,
- medical or toxicology reports, if available.
Every situation is different. The court must consider all the evidence. It can’t rely only on how many drinks the person consumed or whether they remember what happened. Courts have also recognized that people may forget certain events or details after experiencing trauma, like sexual assault.
What are the legal consequences?
Sexual activity that happens without a person’s consent is sexual assault. A person who commits sexual assault may face consequences like:
- criminal charges,
- a criminal record if found guilty,
- a prison sentence, in some cases,
- registration in the National Sex Offender Registry, in some cases.
What can people who experience sexual assault do?
Someone who has experienced sexual assault can take different steps to report what happened, have their rights recognized or get support. Here are a few examples:
- Report the crime to the police. There is no time limit for reporting sexual assaults to the police. It’s possible even if several years have passed.
- Sue the person responsible in civil court to ask for financial compensation for the harm they experienced, like psychological harm. This is possible even if no criminal charges have been laid or if the person was found not guilty in a criminal case.
You don’t need to make a police report or take legal action to get help. In Quebec, several organizations offer free support, information and help to people who have experienced sexual assault.