Jake and Josie Get Drunk and Hook Up: An Exploration of Mutual Intoxication and Sexual Assault

24 Pages Posted: 24 May 2018

See all articles by Michael Scott

Michael Scott

Financial Services Regulatory Authority of Ontario; York University, Osgoode Hall Law School, Students

Date Written: July 12, 2017

Abstract

In R. v. Daviault, the Supreme Court of Canada recognized a defence of extreme intoxication to general intent offences, including sexual assault. In the aftermath of Daviault, Parliament swiftly enacted section 33.1 of the Criminal Code. While the lower courts are divided on the constitutionality of section 33.1, its operation precludes a defence of extreme intoxication for some general intent offences. Thus, intoxication can prevent the complainant from giving valid consent, but cannot prevent the accused from forming the necessary intent. How should criminal liability be determined where two individuals become voluntarily intoxicated to the point of incapacity and engage in sex? In theory, the criminal law is committed to the protection of the bodily integrity of all individuals and to the punishment of only the morally blameworthy. However, this article argues that the law’s treatment of mutual voluntary intoxication violates these core principles of our justice system.

Keywords: sexual assault, intoxication

Suggested Citation

Scott, Michael, Jake and Josie Get Drunk and Hook Up: An Exploration of Mutual Intoxication and Sexual Assault (July 12, 2017). Alberta Law Review, Vol. 54, No. 4, 2017, Available at SSRN: https://ssrn.com/abstract=3169390

Michael Scott (Contact Author)

Financial Services Regulatory Authority of Ontario ( email )

5160 Yonge Street
P.O. Box 85, 17th Floor
Toronto, Ontario M2N6L9
Canada
4162267834 (Phone)

HOME PAGE: http://www.fsrao.ca

York University, Osgoode Hall Law School, Students

North York, Ontario
Canada

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