Commentary

Intoxicated persons could give consent to sexual acts

The Cebu writing community had been rocked lately with the allegations of one writer that she had been sexually assaulted by a panelist while in a workshop in Iligan [not Manila].

With all due respect to her, intoxicated persons could give consent to the sexual act. It is simply not legally correct to state that intoxicated or drunk persons cannot give consent and therefore every sexual act done with them is rape.

The rule in our jurisdiction is taken from the 1891 State v. Charley Lung case of the Nebraska Supreme Court, which had been cited by our Supreme Court in the 2017 People v. Tionloc case, G.R. No. 212193.

It is this: “where consent is induced by the administration of drugs or liquor, WHICH INCITES HER PASSION BUT DOES NOT DEPRIVE HER OF HER WILL POWER, the accused is not guilty of rape.” (Capitalization mine.)

Actions prior, during, and after the sexual act should be considered to determine if there was consent to the sexual act.

The actions of the alleged victim PRIOR to the sexual act indicate consent. She admitted herself that the alleged perpetrator had been her crush during the workshop.

True, crushing on someone does not necessarily mean consent to a sexual act with that person. But combined with all her other actions, I don’t think any court could morally convince itself that the alleged victim did not consent to the act. She was dancing with him. They disappeared while everyone was celebrating. Unwritten in these lines is the fact that no one noticed her being dragged and brought somewhere else against her will.

Actions DURING the sexual act – Her very own witness said that she got on top of him, and took off her clothes. That in fact, she drunkenly asked the male friend in the room, “Friend, please…” which was understood by that male friend as a signal for him to leave.

Finally, the morning AFTER the alleged rape, it was more important for her to catch her flight to Cebu, instead of reporting the alleged violation of her person to the proper authorities and subjecting herself to medical examination which might have produced corroborative scientific proof that she did not give consent – e.g. bruises and scratches inconsistent with sexual congress fueled by mutual lust.

Thus, even if it was true that she was drunk, or that she could not recall giving consent, it does not mean that she did not give consent. Her own recollection and the recollection of the people around her prove otherwise. The totality of her actions prove consent.

The level of drunkenness of the alleged rapist is immaterial. What is clear is that her actions show consent.

With all due respect, her call to “put an end to this culture of abuse” is non-sequitur. No one was being abused here. It was a consensual act of two consenting adults. That she could not recall giving consent does not mean that she did not give consent. The totality of her actions, as described above, prove otherwise.

This kind of behavior – shouting abuse when there is none – is precisely what crippled pro-women legislation such as R.A. No. 9262. Every time a woman cries abuse when there is none, we make it difficult as a society to really help those who are actually abused, because the “noise of abuse” is there. Every time a woman claims she did not consent when her actions prior, during, and after the sexual act clearly show that she consented to it, we make it more difficult to distinguish consensual from non-consensual sex.

May she find peace in her heart and move on with her life.

P.S. Just to shut up right away those who would accuse me as some “rape supporter”: I have caused the conviction of three rapists, and on the way to convict two more. I hate rapists as much as you do. Our main difference is I understand the subtleties of consent, while you presume that when a woman claims that she did not consent, that’s it.

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