As parents send their children off to university, I hope they are cautioning them about having drunken university sex. Not only should their children be cautious about having sex with individuals who are apparently too drunk, but they should be cautious about getting drunk themselves and ending up in a stranger’s bed. It seems that it is fairly common for university students to drink to excess, and end up having sex in an alcoholic blackout or amnesiac state, such that when they wake up the following morning they do not remember what lead to the sexual encounter in the first place.
The question is – when the student wakes up the next morning and does not remember consenting to sex due to a blackout, was it rape? The answer is NO. Notably, while they were blacked out, they appeared to be functioning normally, so the sexual partner had no idea they were in a blackout state. It would be unreasonable to find that the unknowing sexual partner had committed a criminal offence in those circumstances. In fact, without expert evidence, the evidence of a blackout is not even evidence of intoxication. It is only evidence that the witness cannot remember what happened.
Clearly, not everyone is aware that you can legally consent to sex while blacked out, but some people who should be very aware of that fact include resident advisors at universities and Crown attorneys. Unfortunately, in one of the cases I am currently working on, a resident advisor and a Crown attorney were both misinformed on that issue. They both believed that you could not consent to sex while in a blackout state. My case is a sad case all around. My client, Francis Tweneboah-Koduah (who asked that I name him in this blog), was an 18-year-old boy who came from Ghana to Ontario to study aerospace engineering. In his frosh week, just after landing in the country, he was not only trying to make friends like everyone else as they go off to school, but he was also trying to assimilate into a new and very different culture. After a few nights at school, an equally young girl flirted with him. According to her friends, she didn’t have glassy eyes, slurred speech or problems walking, but there was no question that if you knew her, you would have known she was intoxicated – she was acting way out of character. She wanted to go to my client’s room to make out or “something to that effect”. Unfortunately, she blacked out when she got to my client’s room. They had sex. Both the resident advisor and the Crown attorney in my case informed her that since she could not remember consenting, it was rape. They were both wrong and caused irreparable damage to both the complainant and my client Francis, who have endured years of court proceedings as a result of that misinformation.
Francis and the complainant are not the only ones that have endured years of suffering due to one night of drunken university sex. I recently learned that in one American university, they had a policy to expel any student that had sex with an individual while they were in a blackout state. One female student woke up one morning realizing that she had had sex with a friend, but did not remember consenting. She reported the incident and he was expelled. Soon thereafter, she again had drunken sex with another friend and again, when she woke up she could not remember having consented. However, on this second occasion, the male sexual partner also could not remember having consented to sex and, realizing she would likely report the incident and get him expelled, he reported the incident first and had her expelled. Ironically, she thereafter sued the university. That story exemplifies, why it cannot be a criminal offence to have sex with someone while they are in a blackout state.
As I said, parents should be warning their kids about drunken sex as they send their children off to school.