Alcohol and consent in the military. It's not as black and white as you might think.
Hey, everyone. I'm Cody Harnish, military defense attorney. I've seen the complexity of cases involving alcohol, consent, and sexual assault. Now, SHARP training is vital. It's important that service members understand how to act in a professional environment with one another, boundaries and consent.
But SHARP often oversimplifies complex issues. Yes, being incapacitated absolutely means there is no consent, that's simple.
But what about situations where alcohol is involved and the people engaging in sexual activity are freely choosing to do so?
Consent is a mutual agreement and the presence of alcohol doesn't negate it.
The key question is, were the parties capable of making an informed decision? Consider this case:
Two service members are drinking at a bar. They decide to go home together. They both choose to have sex. But when one wakes up and now has a more clear mind, questions of consent arise. Does the fact that they were drinking all of a sudden make it a nonconsensual sexual activity? No.
Consider this: a couple is getting married, and at the wedding reception, they both toast and drink a glass of champagne and then immediately go up to the hotel room and consummate their marriage. Did anyone get sexually assaulted in that hotel room? No. Just because one person was drinking and another person was drinking doesn't mean there was no consent.
From a legal standpoint, every case is unique. It involves examining the evidence, understanding the party’s intent, understanding their state of mind to understand the nuances of consent.
In the military, they incorrectly teach service members that if you drink, you cannot consent. Well, let me tell you this. That is wrong. It is a scare tactic to try to prevent you from ever being in a bad situation. Because if you're drinking and you decide, “well, no, I can not. I absolutely can engage in this activity because of the training, because I've been told in my short training that it would be bad and I could get in trouble.” So you abstain and you go home. Well, you've honestly avoided possible questions of trouble. But that's not how life works. And when we're drinking, people don't always make the best decisions.
Some people sleep with others that they would never sleep with if they were sober. This has been happening since the beginning of time, since the invention of alcohol. It lowers inhibitions and makes people act differently. But it does not automatically mean there is no consent.
So, if you are in the military and you have questions of consent because and only because alcohol was involved, get all the facts. Get all the facts before you label yourself either as a victim or as a perpetrator.
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