Updated October 2026: I’ve rewritten this post to tighten the Argument and correct some legal details. The conclusion hasn’t changed.
TL;DR: “You’re responsible for driving drunk, so why not for agreeing to sex drunk?” compares the wrong people. The drunk driver’s counterpart is whoever had sex with someone too drunk to consent, and being drunk excuses neither of them. The line isn’t drunk but too drunk to judge: two tipsy adults who want each other aren’t committing a crime.
You know how the Argument goes:
“If you can get drunk, crash your car and still be responsible for the decision to drive, why can’t you be held responsible for agreeing to sex while drunk? Why is that rape?”
Looked at quickly, it seems pretty solid. It’s actually a false analogy. Let’s see why.
Note: I’m not a legal expert or a professional philosopher. This is what I concluded after researching and thinking it through. Plenty of people could present it better, so please leave a comment with your thoughts.
The analogy swaps the roles.
Look at who is doing what. The drunk driver is the one acting: they get behind the wheel and put other people at risk. The drunk person who “agreed” to sex isn’t the one doing something to someone else. They’re the one something is being done to.
So the drunk driver’s real counterpart isn’t the drunk person who said yes. It’s the person who had sex with someone too drunk to consent. Put like that, the law is perfectly consistent: being drunk excuses neither of them. You can’t rob a bank and later say “sorry, I was drunk.” You can’t rape someone and say it either.
Being raped is not an action. Raping and robbing are.
Criminal law makes this formal. A crime generally needs a guilty act (actus reus) and a guilty mind (mens rea). For rape, the act is sex without valid consent; the guilty mind is knowing — or, in many places, having good reason to know — that valid consent wasn’t there. The person on the receiving end supplies neither. They’re the circumstance the crime happens in, not the one committing it.
Consent is a different kind of thing.
When you drive, nobody needs your permission. You’re simply doing something, and you answer for it. Drinking doesn’t get you out of that.
Consent is permission you give someone else to do something to you. It’s what turns an act that would otherwise be a serious wrong into one that isn’t, and it only works if you’re in a state to understand what you’re agreeing to. You have to consent to an action that’s done to you. You don’t have to consent to your own actions.
We already accept this everywhere else. If a bank got you blind drunk and had you sign some rather nasty documents, nobody would say “you chose to drink, so you’re bound by it.” In many countries, a contract signed by someone too drunk to understand it can be undone, especially when the other side knew. In many places, a bar that keeps serving a visibly drunk customer can be held liable for the harm that follows (dram shop laws in the US are one example). That doesn’t make the drunk driver any less responsible. It means the law also puts a duty on the sober person who can see what’s happening.
The pattern is always the same: when one person is too impaired to protect their own interests, responsibility lands on whoever can see it and goes ahead anyway.
What if they want it?
This is where the Argument gets its second wind. What if the drunk person wants sex, or even starts it?
It depends on how drunk. But if they’re past the point of judging what they’re agreeing to, their enthusiasm doesn’t make it okay. Think of a tattoo. Sober, you can have almost anything you like inked on you. A decent tattoo artist will still send a drunk customer home, however much they insist, because a drunk “yes, do it” isn’t one they can rely on. If the artist goes ahead anyway, the fault is theirs, not the customer’s.
California’s courts draw the same line for sex: someone too intoxicated to give legal consent can say yes, and it still doesn’t count.
That doesn’t mean a couple of drinks turns every encounter into a crime. The line isn’t drunk. It’s incapable. California’s Penal Code § 261(a)(3) makes it rape when intoxication prevents someone from resisting, and the accused knew, or reasonably should have known. Courts read “prevented from resisting” as too intoxicated to exercise reasonable judgment, not as having made a choice you regret the next morning. Poor judgment and no judgment are different things.
German law, where I live, is even more explicit. § 177 of the Criminal Code separates two situations. If someone is completely unable to form or voice an objection (asleep, unconscious, severely intoxicated), taking advantage of that is a crime. If their ability is significantly impaired but not gone, they can still consent, but the other person has to have actually made sure of that consent first. Either way, the impairment has to be established; the fact that someone had been drinking heavily isn’t enough on its own.
So two tipsy adults who clearly want each other aren’t committing crimes. Someone who has sex with a person who is slurring, stumbling or drifting in and out of consciousness is.
What if both are drunk?
This is the strongest version of the objection, and the same principle answers it. Each person is responsible for what they do, drunk or not. Each person’s consent counts only if they’re capable of giving it. If one of them can no longer make a meaningful choice and the other can still see that, the one who sees it and goes ahead is responsible, whatever their gender.
Real cases are messy, and the line itself is genuinely debated. When Germany reformed its law in 2016, critics argued the new rules were vague enough to leave sex between two drunk people in a legal grey zone. That’s a fair Argument about where the line should sit. It isn’t an Argument that drunkenness should excuse the person who crosses it.
If you want someone who puts all this better than I can, the philosopher Alan Wertheimer works through exactly this tension in Consent to Sexual Relations (2003). His conclusion is that holding people responsible for what they do while drunk is compatible with doubting the consent they give while drunk. John Danaher has a readable summary of the Argument.
One rule, not two
The drunk-driving Argument assumes that if being drunk doesn’t excuse what you do, it shouldn’t protect you from what others do either. But those aren’t two rules in conflict. They’re one rule, seen from both sides:
- Your drunkenness never excuses what you do to someone else.
- Someone else’s drunkenness never excuses what you do to them.
Since this post first went up, I’ve written a series on the manosphere, where arguments like this one are common. It starts with What is the Manosphere?.
Written with AI assistance.
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