Secular Liberalism’s sex & alcohol problem

Recently, a UK Legal barrister, was reported in a recent news article [1], to have publicly advised people that it is safer to avoid having sex with anyone who has drunk ANY amount of alcohol, in order to avoid the possibility of being accused of rape (due to the victim possibly being considered too intellectually impaired by the alcohol to provide reasoned consent).

Calling for people to abstain from sex unless they haven’t touched a single drop of alcohol, could be a difficult proposition for the accepted social drinking culture of the West, so what brought this on? Secular liberalism will, it seems, do anything to deny that it has a problem with alcohol.

Secular Liberalism uses a key criteria to judge what is morally good or bad: the consent or desire of the individual. This criteria sounds simple (and give us a warm sense of self-importance, albeit false) but can create very contradictory ethics and law. Take it’s approach to alcohol:

1) Secular Liberalism permits alcohol to be freely imbibed because Secular Liberalism determines good/bad vis a vis human desire and consent, and finds it difficult to justify preventing individuals who desire to drink alcohol consensually

2) Alcohol impairs people’s ability to think and act responsibly as well as their sense of inhibition and, ultimately, their capacity to make meaningful or reasoned consent.

3) People who are drunk are not in a state to give reasoned consent or intent

4) Touching people without their consent, or taking property from people without their consent, is wrong.

5) Therefore, Secular Liberalism considers that obtaining money from someone who is drunk, even by asking them [‘rolling a drunk’], is theft, and sex with people who are drunk would be classified as rape [2]

6) The Law requires an unimpaired intellectual intent behind an action, in order for a perpetrator to be responsible for a crime.  If a person’s intellect is compromised, responsibility is diminished. For example, if a hospital patient gets out of bed and accidentally knocks someone out of a window while in a drug-induced delirium, they couldn’t be justly convicted.

However, alcohol presents a significant problem. How does Secular Liberalism deal with the problem of establishing intellectual intent in order to justly punish a perpetrator that was drunk and unable to form intellectual intent?

Can Secular Liberal legal systems maintain consistency with its principles, protecting innocent people, maintaining clear boundaries in society, while at the same time fulfilling the important task of preventing rape, punishing transgressors and protecting victims?

In order for Secular Liberalism to be consistent, it would absurdly have to not punish anyone for doing anything while drunk (i.e. when they are at the point of mental incapacitation).

But this would be preposterous, since how do we stop drink driving deaths and casualties? Drunken violence? Drunken domestic violence? Rape perpetrated by drunks? Drunken anti-social behaviour? etc

Do we only ban being drunk in public? Well, the West tried that [3], and it also proved to be impractical, since it is absurd to expect people to exercise limited and responsible drinking, while they imbibe an intoxicant that slowly impairs their reasoning ability, and therefore their ability to ascertain how they drunk they’ve become(!)

The problem of the legalisation of alcohol, and the laws created to manage its consequences, unfortunately provides for a clear example of the contradiction of legal systems based upon Secular Liberalism.

This has caused much confusion and contradiction amongst ‘Mujtahids’ (barristers/ethicists) of Secular Liberal legal systems. This issue was highlighted in the UK by barrister Cathy McCulloch, in a recent news article [1]:

‘If a young man and a young woman are equally drunk, and have sex, if the young man wakes in the morning and says: ‘I really didn’t want that’, little will, or does, happen to the female lying next to him.

However, if a female wakes in the morning and says the same thing, she can make an allegation of rape to the police — even if the young man believed she consented to what happened the night before.

If the case goes to trial, that belief will be tested by the jury in two stages to see if it was ‘reasonable’.

First, they must weigh up all the circumstances, including any steps the young man took to find out if his date was consenting when sex took place. 

Secondly, the fact alcohol may have affected his belief is no defence. The jury must consider what he would have believed reasonable had he been sober.

If he gets arrested for rape, the young man and his family will find their lives turned upside down. He will have to remember very intimate moments in his life and try to recount them clearly and in forensic detail to a jury. He may not be able to do that.

The law is simple. If a woman has had a drink, and says after sex she did not have the choice, freedom and capacity to consent, the man can be accused of rape. A man being drunk is no defence in law……Even if the female seems to be consenting, and may be even encouraging him at the time, he might still be convicted of rape…The real issue is there is no legal definition of what is ‘too drunk’.

Barrister Cathy McCulloch concludes with advice to protect young men from false accusation of rape:

‘Young men need to learn that if their companion appears drunk but gives all the signs, as they see it, of consenting, she can still say later that she was not fit to consent. This message really needs to be put out there…to help stop young lives being ruined for lack of knowledge’ [1].

Matthew Claughton, managing director at Olliers Solicitors, critiqued McCulloch’s statement: ‘To suggest that men and woman avoid drunken sex is unrealistic…It is not possible to advise people not to engage in drunken sex because once under the influence of alcohol they will do what they want..If I could offer any advice to young men and woman regarding drunk sex and consent, I would suggest that a man proceed with extreme caution if there is a disparity between the level of drunkenness between him and the female’ [2]

Two years ago, another UK Barrister, David Osborne, caused outrage when he argued that if a woman consents while being drunk, it is not to be considered rape, he wrote ‘In my book, consent is consent, blind drunk or otherwise, and regret after the event cannot make it rape’ [4].

The problem of alcohol also caused similar legal confusion in the U.S.A [5], and places with frequent free-mixing of young people getting drunk, like universities, have reportedly been struggling to determine when cases of drunken sex become rape [6].

In one well known case, two drunk students at Occidental College, Los Angeles, engaged in sexual relations with each other after the female student was reportedly seen “grabbing [the male student] and trying to kiss him” [6], later she was reported to have gone to his room, where another passing witness had walked in and seen the two of them. The next day, both the male and female student reportedly couldn’t remember the full encounter. The female student accused the male student of rape because she reasoned she must have been too drunk to have consented (or that she wouldn’t have engaged in sex with that student had she been sober).

Although the police and state attorney declined to prosecute the case further due to the SMS and witness evidence before, during and after the incident, that suggested nothing beyond mutual consent. Occidental university expelled the male student regardless for sex with a student who was mentally incapacitated. In response, the Foundation for Individual Rights in Education [FIRE] publicly criticised the university for being inconsistent and only punishing the male student: ‘the applied definition of [mental] incapacitation would make both parties guilty of sexually assaulting one another brings into stark relief the fundamental unfairness and lack of substantive due process present in Occidental’s actions’ [7]

In essence, FIRE argued that the two drunk students had raped eachother[!].

This would bring a number of complications if applied consistently by the legal authorities in a Secular Liberal country. While it is certainly clear that if anyone is passed out due to inebriation, it would clearly be rape to sleep with them, what if they are in an altered state of mind that alcohol induces in everyone who drinks?

If the law punished everyone for sleeping with someone who is drunk, regardless if they were also drunk, then every two drunk people sleeping together, would both have to be punished, regardless of whether they didn’t press charges, or even didn’t regret it afterwards – which many legal theorists would consider absurd.

Secondly, how do we protect people against false accusation of rape, if the person they were sleeping with, drank alcohol, but appeared to be fine and mentally alert and not physically incapacitated, but internally, they were too drunk to give the same reasoned consent had they been sober?

Thirdly, what if a sober woman engages in sex from a drunk man, who after sobering up, doesn’t remember and regrets the encounter? Should the woman be punished for not ensuring the man was mentally not too drunk to give reasoned consent?

As the Cathy McCulloch says ‘The real issue is there is no legal definition of what is ‘too drunk’.

So what can Secular Liberalism do?

Well, seeing as Secular Liberalism doesn’t ban consensually imbibed alcohol, it just continues to punish people if they do anything illegal while being drunk (it may reduce the sentences slightly though).

But considering that 70% of violence in the UK, is committed due to influence of alcohol [8], Secular Liberalism is therefore clearly unable to prevent a lot of crime – because it expects people to inhibit themselves from transgression, while imbibing an intoxicant that expressly creates a lack of inhibition!

Furthermore, Secular Liberalism tacitly accepts the problem of alcohol affecting intent, because if a person commits murder while being drunk to the point of mental incapacity, the law considers their responsibility is reduced, and they are punished with a lesser criminal offence [e.g. Manslaughter, and not murder], despite the fact that it is still the same act [i.e. unjustly killing someone].

In order to maintain a deterrent, Secular Liberalism must hold inebriated people as legally responsible for their actions, but at the same time, accept that inebriated people can’t give consent for their actions. So not only is Secular Liberalism unwilling to deal with the sources of crime, it also exists with clear self-contradictions.

While Secular Liberal legal systems permit people to drink, and to sleep with each other despite imbibing alcohol, the only thing that can be done is for legal theorist like Cathy McCulloch to warn people to be ‘aware of the risks that they run’ [1] when exercising their ‘freedom’ to legally drink and fornicate, because if ‘a woman has had a drink, and says after sex she did not have the choice, freedom and capacity to consent, the man can be accused of rape…Even if the female seems to be consenting, and may be even encouraging him at the time, he might still be convicted of rape’. [1]

All these complications and contradictions arise all because Secular Liberalism and its principles cannot justify prohibiting consensually imbibed alcohol.

Islam’s solution: Ban Alcohol, then punish anyone who breaks the law. Simple.

In fact, Islam is a much freer system than Secular Liberalism. Freedom isn’t the ability to do whatever you want, but the being free from arbitrary punishment based on the whims of others, and their capacity to selectively apply unclear laws.

Clear laws are easy not to fall foul of, and people have ‘freedom’ to do what they want in the realm of the permitted [mubah’]. With unclear laws, however, they create minefields where people may wander in and they risk falling prey to the unknowable and mercurial whim of others.

As Professor P J Fitzgerald says:

“Law that is unclear is objectionable on many grounds. It confuses the courts, adds to their work and wastes the time of all who have to unravel it. It leaves the citizen uncertain of his duties and obligations, and exposed to the possibility of penal sanctions for unwitting violations — a situation as ridiculous as it is unfair.” [9]

Ironically, the founding father of Secular Liberalism, John Locke, defined freedom as:

‘Freedom of men under government is to have a standing rule to live by, common to every one of that society, and made by the legislative power erected in it. A liberty to follow my own will in all things where that rule prescribes not, not to be subject to the inconstant, uncertain, unknown, arbitrary will of another man’ [10]


[1] http://www.dailymail.co.uk/femail/article-4949266/Men-avoid-sleeping-women-ve-drunk-alcohol.html

[2] http://www.independent.co.uk/life-style/love-sex/men-avoid-sex-women-drunk-any-alcohol-barrister-says-a7984791.html

[3] It’s actually illegal to be drunk in public in the UK [1876 Licensing Act], but this isn’t enforced because it’s too difficult for law enforcement. As one UK policeman said to me “If we’d have to arrest everyone who has ever become drunk in public, we’d have to arrest ourselves”. More Information on UK restrictions of public drinking can be found here: https://www.facebook.com/abdullah.andalusi/posts/10153975752952517

[4] http://www.mirror.co.uk/news/uk-news/it-not-rape-woman-drunk-5119029

[5] http://www.businessinsider.com/can-you-get-convicted-of-rape-if-you-were-drunk-2013-11?IR=T

[6] http://www.slate.com/articles/double_x/doublex/2015/02/drunk_sex_on_campus_universities_are_struggling_to_determine_when_intoxicated.html

[7] https://www.thefire.org/sexual-assault-injustice-at-occidental-college-railroads-accused-student/

[8] http://visual.ons.gov.uk/backup/wp-content/uploads/sites/3/2015/03/150dcp171776_394516cr6.pdf

[9] ‘Road Accidents: Prevent or Punish’, 1969

[10] Two Treatises of Government

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Categories: ARTICLES, Liberalism, NEWS COMMENTARY, Western Society & Culture, WRITINGS

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