Some Legal Advice for Dr. Phil

By Courtney Weinstein 

When I hear the word “alcohol,” I think of good times, socializing, and letting my hair down. The word “sex” for most of us connotes pleasure, reproduction, and maybe even love. While these associations are all positive, we have to consider the devastating truth of what sometimes happens when alcohol and sex are combined.


It has been estimated that 25 percent of American women have experienced sexual assault. That number is astounding. What I was not aware of until recently is that approximately half of those cases involve alcohol consumption, by either the victim, the perpetrator, or both.

In August, one of the best-known television personalities, Dr. Phil, took a poll via Twitter. His tweet: “If a girl is drunk, is it OK to have sex with her? Reply yes or no to @drphil #teenaccused.” We don’t know the result of the poll because the tweet was deleted after people expressed anger and outrage by his seeming flippancy on a sensitive subject.

As clumsy as the tweet may have been, the question that was raised is an important one. When does the combination of alcohol and sex negate consent?

LASIS goes where the Twitter-sphere feared to venture.

In August 2012, a 16 year old girl attended a high school party in Steubenville Ohio, Two high school football players, Ma’lik Richmond and Trent Mays, also 16, publicly and repeatedly sexually assaulted her while she was incapacitated by alcohol. Shockingly, the young men documented the episode and then publicized it via social media. Both were found guilty of rape.

This is not the kind of behavior that is outgrown. Studies show that nearly one in four women will be raped during their college careers, and 80-85% of college rapes are date or acquaintance rape.

Everyone in authority anywhere at least pays lip service to the notion that if someone is asleep or mentally or physically incapacitated, either through the effect of drugs or alcohol or for any other reason, she is incapable of giving valid consent to sex. But of course, it’s not that simple.

Say a guy and a girl get drunk at a party and end up sleeping together. He thinks she was totally down to “get down.” But what if she was too drunk to know the difference between up and down? Is he liable? Should he be? At the heart of it, that was Dr. Phil’s question. And the answer isn’t a simple ‘yes’ or ‘no.’

In order to give legal consent to sexual intercourse, a person must be able to practice reasonable judgment, that is, she must be capable of understanding the physical nature of the act, its moral character, and probable consequences.

Criminal definitions of rape vary from state to state. According to the N.Y. Penal Law section 130.35, first-degree rape is defined as engaging in sexual intercourse with another person a) by forcible compulsion or b) who is incapable of consent.

Again, though, it’s not so simple. What happens when a guy and a girl have slept together before, perhaps several times, and she says she didn’t consent this time? In a 1984 North Carolina case, the court ruled that consent was given based on the fact that the parties had been in a consensual sexual relationship for six months.

And how can we hold a guy liable for knowing a woman was too too drunk to consent, anyway? Barring the kind of evidence we don’t often get in date rape cases, it is difficult to see how it can be proven beyond a reasonable doubt that anybody (ever) knows the extent of the other’s mental condition.

On the other hand, in a 2008 Massachusetts case, the court said a woman cannot consent when due to intoxication, she becomes “wholly insensible.” According to the court, a jury in this kind of case should be instructed about the capacity to consent in cases when it’s alleged that the consumption of alcohol caused the complainant to be so impaired as to be incapable of consenting to intercourse.

And though a 1979 North Carolina case held that a woman’s right to revoke her consent disappears once penetration has begun,  most states have ruled that a woman has the right to revoke consent to sex at any time.

So – @DrPhil: To answer your question —

If a person is unconscious or alcohol has severely impaired her judgment, she is legally unable to give consent.  As for when a man is held liable for knowing that she was so impaired and proceeding to have sex with her anyway – that’s a grey area, and a difficult issue, that cannot be encapsulated in 140 characters or less.


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