Let’s be real for a second. We’ve all seen the movies where two people stumble out of a bar, laughing and tripping over their own feet, and it’s framed as a "wild night." But in the real world, the morning after often brings a heavy, sinking feeling in the gut. People start asking the hard questions. Specifically, if both parties are drunk is there consent, or is everyone involved technically breaking the law? It’s a terrifying grey area that doesn't just affect college kids; it touches everyone from weekend bar-hoppers to long-term couples.
The short answer is complicated. It’s not a simple "yes" or "no" because the law doesn't care about fairness in the way we usually think about it. If you’re both drunk, the legal system doesn't just throw its hands up and say, "Well, it’s a wash!" No. The focus usually shifts to who initiated, who was more incapacitated, and whether a "reasonable person" would have known their partner was too far gone to say yes. It’s messy. It’s nuanced. And honestly, the "mutual intoxication" defense is a lot flimsier than most people think.
The Legal Definition of Incapacitation vs. Just Being Tipsy
There is a massive, legally significant gap between being "buzzed" and being "incapacitated." This is where most people get tripped up. Most state laws, like those in California or New York, specify that consent cannot be given if a person is "incapacitated" by drugs or alcohol.
But what does that actually mean?
Incapacitation is when you lose the ability to understand the nature of the act. We’re talking about slurred speech, stumbling, vomiting, or passing out. If someone is "blackout drunk," they might physically be moving and talking, but legally, they lack the capacity to enter into a "meeting of the minds." According to RAINN (the Rape, Abuse & Incest National Network), intoxication is one of the most common factors in sexual assault cases precisely because it blurs these lines.
If both people are at that level of intoxication, you have a legal nightmare. In many jurisdictions, the person who "initiated" the sexual contact is the one scrutinized. If Person A and Person B are both hammered, but Person A takes the lead, a jury might still find Person A responsible if Person B was clearly unable to function. It feels unfair to some—the "but I was drunk too" defense—but the law generally holds that your own voluntary intoxication does not excuse you from recognizing the intoxication of someone else.
The "Reasonable Person" Standard
Courts love this phrase: the Reasonable Person Standard.
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Imagine a sober, objective observer standing in the corner of the room. Would that person look at the situation and say, "Yeah, it’s obvious that person is too drunk to consent"? If the answer is yes, then the person who initiated the contact is often in legal jeopardy.
Here is the kicker. You don't get a pass just because your own judgment was clouded. If you were so drunk that you couldn't tell your partner was incapacitated, the law often says you should have known. It’s an objective test, not a subjective one. This means your internal state—how "gone" you felt—might matter less than the external signs your partner was showing.
When "Both People" Means Different Things
We have to talk about the physical reality of alcohol. A 200-pound man and a 120-pound woman can drink the exact same three drinks, but their blood alcohol content (BAC) will be wildly different.
If both parties are drunk, one is almost always "more" drunk.
In a 2021 study published in the Journal of Interpersonal Violence, researchers looked at how alcohol affects the perception of consent. They found that intoxicated men were less likely to recognize "non-verbal' cues of resistance than sober men. When both are drinking, the ability to read the room vanishes. This is why "if both parties are drunk is there consent" is such a dangerous question—because alcohol literally deletes the hardware in our brains used to process consent.
Real-World Scenarios vs. The Law
- The Blackout Loophole: Just because someone is talking doesn't mean they are consenting. High-functioning blackouts are real. A person can hold a conversation and then wake up with zero memory. Legally, if they were in a blackout, they couldn't give informed consent.
- The "Who Initiated" Factor: In many campus disciplinary boards and criminal courts, they look for the "active" party. If you are the one performing the act, the burden is on you to ensure the other person is capable of agreeing.
- The Regret Factor: This is the most controversial part. Legally, "drunk regret" is not the same as sexual assault. If two people are tipsy, fully aware of what they are doing, and wake up feeling embarrassed or sad, that isn't a crime. The crime happens when the alcohol crosses the line into incapacitation.
Why Campus Policies Are Stricter Than Criminal Law
If you’re a student, the answer to "if both parties are drunk is there consent" is almost always a hard no.
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Universities operate under Title IX. Their standards are often much higher than the "beyond a reasonable doubt" standard used in criminal courts. Many schools have "Affirmative Consent" policies. These require a "clear, unambiguous, and voluntary agreement."
Under these rules, if alcohol is involved, the school often defaults to the idea that consent was impossible. If both students are drunk, the one who is reported as the "respondent" often faces an uphill battle. They can't just say, "Well, I was drunk too." The school will look at who was more incapacitated and who was the "aggressor" in the situation. It’s a brutal reality for many students who find their lives upended after a night they can barely remember.
The Myth of the "Get Out of Jail Free" Card
There’s this weird urban legend that if both people are equally drunk, no crime can be committed.
That is a lie.
It’s a dangerous one, too. In a courtroom, "mutual intoxication" isn't a formal legal defense. It might make a prosecutor less likely to take a case because it’s hard to win in front of a jury, but it doesn't make the act legal. Prosecutors look at "victim" and "defendant" roles. If one person feels violated and files a report, the fact that the other person was also drinking is rarely enough to get the charges dropped immediately.
What Research Says About Alcohol and "Yes"
Dr. David Lisak, a renowned researcher on sexual violence, has spent decades looking at how offenders use alcohol as a tool. While not everyone who drinks and has sex is an offender, alcohol is statistically the #1 "date rape drug."
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When we ask if both parties are drunk is there consent, we have to look at how alcohol impairs the brain's "executive function." This is the part of your brain that handles decision-making and impulse control. When that’s offline, "yes" doesn't mean "yes" in the way it does when you're sober. It’s more of a reflex than a choice.
Practical Steps and Navigating the Grey
Look, the best advice isn't what people want to hear. It’s not "drink less." It’s about pre-meditated consent.
If you think a night is going to lead to sex, talk about it while you're still sober or just having the first round. "Hey, I really want to go home with you tonight, but let's make sure we're both good if we keep drinking." It sounds clinical, but it saves lives and reputations.
If you find yourself in a situation where you’re both drunk:
- Check the physical signs: Is their head lolling? Are they repeating themselves? Can they walk straight? If the answer is "no" or "maybe," stop. Just stop.
- The "Wait Until Morning" Rule: It is the only 100% safe way to handle consent when substances are involved. If you’re both into each other, you’ll still be into each other at 9:00 AM after a coffee.
- Understand your local laws: Every state is different. Some states like Wisconsin have very specific statutes about "mental deficiency" or "intoxication" that are broader than others.
- Listen to your gut: If you feel like the situation is sliding into a place where you can't tell if the other person is fully "there," they probably aren't.
Consent isn't a "one and done" thing. It’s a continuous flow. If someone is sober enough to say yes at 10 PM, but by 11 PM they are slurring and nodding off, the consent they gave an hour ago is void. You can't rely on "past consent" when someone becomes incapacitated.
The reality of "if both parties are drunk is there consent" is that you are playing a high-stakes game with your life and someone else's. The legal system is blunt, and it doesn't handle the "we were both wasted" excuse with much sympathy. Protecting yourself and your partner means recognizing that alcohol and consent are fundamentally incompatible once you move past a light buzz.
If you’re worried about a situation that already happened, talking to a legal professional or a counselor is the move. Don't rely on Reddit threads or "bro science." The law is specific, and the consequences of getting it wrong are permanent.
Next Steps for Safety and Clarity:
- Review your state's specific "Incapacitation" laws to see where the legal line is drawn in your area.
- Talk to your partner about boundaries regarding substance use and sex before the drinks start flowing.
- Prioritize "Affirmative Consent"—if it isn't a clear, enthusiastic "yes" from someone who knows where they are, it’s a "no."