In his piece, “Intoxicated Consent to Sexual Relations,” Alan Wertheimer addresses the question of whether (unambiguous) consent to sex should be regarded as valid when only given while intoxicated. In his case, it is a woman “B” giving consent to a man, “A.” As Wertheimer points out, there are major institutional and moral ramifications to any answer. His claim, however, is that this question of permissibility cannot be resolved with moral logic; it cannot be answered a priori. And because moral logic cannot tell us what to do, he says, to inform such an answer we should look at the empirics: namely, do women generally regret having intoxicated consent or not? Wertheimer’s argument, however, is too concerned with protecting women’s autonomy. Instead, I argue that we should focus on minimizing harm, and thus the answer to the permissibility question can and should be determined a priori, in one sense, which I will show. The answer is that intoxicated consent should be regarded as invalid (this idea is called, by Wertheimer, the “impermissibility claim”). I will defend the impermissibility claim by first defining what constitutes valid versus invalid consent, and I will agree with Wertheimer that intoxicated consent does not always fall one way. Then, I will suggest a different empirical question we could be asking – one, however, which I believe has a universally accepted answer.

It is important to first highlight the different claims Wertheimer makes use of. Along with the impermissibility claim, there is the intoxication claim, which says that all intoxicated consent is necessarily invalid. The responsibility claim states that we should regard one as responsible for their voluntarily-intoxicated actions, and the validity claim says that the responsibility claim implies B’s voluntarily-intoxicated consent is always valid. Wertheimer first argues in favor of the responsibility claim. He gives several reasons for why we might accept it, but I imagine this claim is not very contentious and needs little defending; most people presumably agree with the notion that someone should be held responsible for, say, crimes they commit while voluntarily intoxicated. But Wertheimer also claims the notion of intoxicated responsibility does not imply the validity claim, and we should, in fact, reject the validity claim. He employs the following analogy: if I go skiing, I am responsible for my actions, and I have incurred some higher risk of injury. However, if an injury were to happen, surely I need not internalize all of the consequences on my own (and many medical insurance policies would ensure that I do not bear the full burden of the medical costs). So it is with consent: though B is responsible for her intoxicated behavior and thus deserves some blame, she does not deserve all of the blame or consequences of consenting to sexual relations while intoxicated.

Equally important, says Wertheimer, is that we do not accept the intoxication claim – this time, on the grounds of the responsibility claim. If B is responsible for her intoxicated behavior, then B’s intoxicated consent can be treated as valid, he says. His reasoning is unclear here, but the point is that intoxicated consent can sometimes be valid. Indeed, Wertheimer must reject the intoxication claim, as accepting it (or the validity claim) resolves the central question of permissibility a priori. Where does this leave us? If Wertheimer is right, and intoxicated consent is not necessarily valid nor necessarily invalid, what should we do? Any institutional policy decisively answering the permissibility question will naturally lead to false negatives or false positives on campus, which is not ideal, he argues, because that means women’s autonomy is being restricted. This is how Wertheimer arrives at his conclusion: broadly speaking, we should try to maximize the number of women satisfied with the policy. He argues for this in two ways. First, he says that we could consider if women generally are satisfied with intoxicated sexual encounters. If so, our policy should probably permit them (by regarding intoxicated sex as permissible) to preserve their general satisfaction. Wertheimer also says we might consider how women feel ex ante: he does not know how the votes would work out, but if women prefer a policy that allows for intoxicated consent to be treated as valid, we should probably adopt such a policy.

I claim, however, that regardless of how the votes work out, we should adopt a policy regarding intoxicated consent as invalid. Note that this is not to say intoxicated consent is always invalid. That statement – the intoxicated claim – is a moral one, while the impermissibility question is concerned with policy (given some false positives and negatives, how should we regard intoxicated consent?).  Also note that there is no difference between B’s consent being invalid and it being impermissible to have sexual relations with B – the definition of valid consent is that it renders A’s actions permissible. So, why should we adopt the aforementioned policy? As mentioned earlier, Wertheimer never makes it clear why we should reject the intoxication claim. All he says is that given the responsibility claim, we could view intoxicated consent as (sometimes) valid. This is coherent, but it’s also coherent to say that we can hold people responsible for their actions and still view all intoxicated consent as invalid; that was the point of the skiing analogy. As Wertheimer says, valid consent is a transformation of what is acceptable for A to do, and perhaps this requires a deeper expression of B’s will (deeper, say, than that which is required for culpability of a crime).

This is exactly the view we ought to take on valid consent. The whole issue at play is the question of whether B’s “higher order” self, her true will, desires to have sex with A. If we knew the answer was No, then we should of course say that her intoxicated consent is invalid – A should not have sexual relations with her! Any reasonable A would agree (the only good argument against this is something like “we don’t really know”). This, then, gives a definition of valid consent – it’s valid when it aligns with one’s true desires. The way intoxicated consent is defined by Wertheimer, however, is such that B’s reasoning process cannot be said to reflect her true self’s desires (though it might). This is the crux of the matter: B’s decisions likely might be inconsistent with her higher order desires or stable preferences. Because we are confining the case to when B only gives intoxicated consent, A can never know for sure what B’s higher order desire is, and thus it seems fair to say that we should regard the consent as invalid; we should regard it as not having the authority, on its own, to be a transformer. This argument gets into murky territory, however. Does it prove the intoxication claim is true? No: we cannot say whether B’s consent is valid or invalid, since it depends on what her higher-order (unknown) desires are. It might be valid, and there is some objective answer to the question of validity, but it could only be answered by a sober B, which is not possible.

There is another key point to make here, though, in which I will again diverge from Wertheimer slightly. He says the validity of B’s intoxicated consent is not a function her ex post regret or satisfaction. This is wrong; it is not a direct function. If we accept my definition of valid consent – B’s higher order self actually wanting to engage in sexual relations – then the validity of the consent is closely tied to B’s ex post regret or satisfaction, which is related to “if her sober self would have wanted to have sex” (but not the same thing; she could regret it for other reasons).

Nonetheless, I have come to the same conclusion as Wertheimer that we should not accept the impermissibility claim by accepting the intoxication claim; I do not think that all intoxicated sex is morally wrong. However, from a policy perspective, A cannot be allowed to take a gamble in having sexual relations with B. Again, by the nature of the scenario, A does not know what B’s higher order desire is. A could feel very strongly that, say, his girlfriend’s intoxicated wishes reflect her sober ones, but if it has not been communicated to him before – as necessary for our scenario – he does not know for sure, and by making a guess (and choosing to have sex) A would be assuming some risk under my suggested policy. But a policy of impermissibility must be set in order to minimize harm. If it were true that having sex were really, really good for you – to the same extent that being taken advantage of while intoxicated is bad – we might rethink things. But the reason for accepting the impermissibility claim is that even if most women would vote for their intoxicated consent to be valid, and our policy can either prevent some “bad” sex (that is, sex not actually desired, and thus not consented to) from occurring or enable more “good” sex to occur, the former is more important despite the vote. One instance of a woman being taken advantage of is worse than any large number of women being prohibited (through men following the policy) from having sex they want. Wertheimer is too focused on sexual autonomy, and he asks the wrong empirical question. The right one is this: which causes more harm, taking away positive or negative sexual autonomy? I think the answer is obviously the latter.

Finally, I emphasize this last claim being true in light of the fact that positive autonomy could be reclaimed, in some sense, by encouraging women to give sober ex ante consent (probably to a particular person) before drinking. Wertheimer does not deal with this scenario, but I think its possibility should be considered when forming a policy. It would be less appropriate to have the opposite policy, a permissible one, and encourage women to reclaim their negative autonomy in the same way – it is not clear how women would token to all men they don’t want their intoxicated consent to valid. I have argued that while we need not accept the intoxication claim, we should accept the impermissibility claim – and we do not need to gather any empirics to do so. We should regard it as impermissible for a man to have sexual relations with a woman when he does not know what her higher-order desires are. This is because our policy should aim to minimize overall harm done rather than protect the majority of women’s autonomy, and more harm is done when one women when has non-consensual sex than when any number of women are prevented from having voluntary intoxicated sex.