Consent and Incapacitation

[pinkgirl100]

"It is rape when one person does something sexual on, to or inside a person who is unable to give informed consent to sex because they’re asleep or otherwise incapacitated, like via drugs or alcohol (even if they drank or drugged of their own accord), because they're ill, injured, or emotionally bereft, or due to lack of physical, intellectual or emotional maturity, developmental disability, mental illness or because the person assaulting them is in a position of power over them, like a teacher, clergyperson or police officer."

Question: So, I was reading an article about rape on this website and came across the following above passage. I don't know if I am overthinking it, or if I actually do understand what you are trying to say, but I never knew that being emotionally bereft meant that one couldn't consent to sex. Are you referring to where someone is so emotionally distraught they have mental breakdowns, or do you mean it's wrong in instances such as a grieving couple who lost a child etc, coming together and having sex because they are distraught and upset? Or all sex relating to grief/being upset?

Also in regards to being ill and injured, could you clarify what that means? Injured how? Like someone with a broken leg? I don't see how that affects the ability to consent, and in regards to illness, I don't see the same either, unless you were referring to mental illness, which I agree with you then.

I don't mean this offensively, as I am truly concerned and would like to know the answers these questions.

[Karyn]

Hi pinkgirl,that's a very good question. I didn't write that article, so I'm not 100% clear on what Heather meant by emotionally bereft. (I'll leave a note for her and ask that she come in and explain exactly what was meant!) However, my interpretation would be something along the lines of what you're saying, that someone can't consent if they are so emotionally distraught or bereft that they are dissociating or something along those lines. Someone who has been triggered and is experiencing a flashback, for example, would not be someone able to give informed consent. I wouldn't say that a grieving couple having sex would be non-consensual, unless, again, one or both of them is so distraught that it is interfering with their ability to realize what is happening and to agree to it.

Per illness or injury, the basic requirement for any kind of consent though is that it is not only informed and freely given but also that the person giving it is able to communicate their consent in some way, and to communicate throughout that they are continuing to consent. So something like a cold or a broken leg wouldn't be a problem, but someone having a concussion, for example, which can cause temporary confusion may not be able to give consent. Similarly, someone with a very high fever might be delirious and also therefore unable to give informed consent.

Hopefully that makes a bit more sense! I'm sure Heather will have more to say on the topic too, and will probably be able to explain it better than I can.

[pinkgirl100]

Thank you! And looking forward to Heather's response, if she decides to comment.

Edit: regarding concussions, I understand the confusion part, but once the person is better or no longer confused, things are okay consent wise again correct?

[Heather]

Karyn got it right: I was referring to extreme distress that can make a person unable to give meaningful consent. The same goes with illness or injury: there are levels of both (ever had a crazy high fever? Been in the throes of a chronic pain condition giant flare-up? Or know how mind-tangling it is like RIGHT when you have broken a bone?) which interfere with our ability to think clearly.

Thus the "a person who is unable to give informed consent to sex because...." That sentence structure doesn't say or suggest someone is ALWAYS unable to give meaningful, informed consent in those situations, but that those situations can be reasons a person cannot.