MDMA, Sex and Consent

The issue of sexual consent is murky enough without adding drugs into the mix. So what happens when people take drugs like MDMA – which not only heighten sexual desire but also affect users’ decisions and behaviour? Many people have found themselves doing things they would not normally do – including wayward and impulsive sexual encounters under the influence of drugs like MDMA. As we shall soon find out, this may have different repercussions for two partners when it comes to sex and the issue of consenting to have sex.

The most commonly known use of MDMA (commonly referred to as Molly or Ecstasy) has been intoxication – or, as some would say, as a way to ‘get high.’ The drug is categorized as both a hallucinogen and a stimulant. This drug has been so commonly used and grown in adoption among users in recent years that it is now considered one of the most popular drugs – used and distributed even in the dim lighting of many nightclubs. Users of MDMA have known for decades that the drug greatly enhances sexual desire in many, leading to sexual encounters or experiences that may not have happened in the first place.

The effects of MDMA often wear off within three to six hours. For this reason, many people consider it a safe way to reinforce their time of fun and get back to normal when the party is over or when they wake up. MDMA is much less addictive than drugs like cocaine that turn users into slaves. Many users like it because they can swallow a molly and wait till the next party to swallow another.

Consent to Sex When High on MDMA

The use of drugs like MDMA and the after-effects have raised concerns and debate over whether the behaviour people display while high on these drugs can lead to legal problems as far as sex and consent is concerned. There have been cases of date rape, distorted memory and criminal drugging by perpetrators that have raised concerns and provided grounds for legal suits.

Several factors that may determine the guilt or innocence of parties regarding consent when high on a drug like MDMA are:

Were both partners aware that they were high on the drug? Cases of drugging unsuspecting prospective sexual partners have provided ground for successful legal suits – in cases where one of the partners was not aware that they had been drugged. In such cases, one of the partners may have dissolved MDMA into the unsuspecting prospective partner’s drink as a way of enhancing the partner’s sexual desire and encourage ‘forceful consent.’ Some people, including celebrities, have been sued for this kind of behaviour. It is for this reason that there has been rising focus on drug-facilitated sexual assault and the legal and moral ramifications it brings with it.

Was there mutual consent before the partners got high on the drug? In this case, what happens after the partners become intoxicated may not make much of a difference. But as they say, sometimes it is ‘your word against mine’, and one of the partners can claim that there was no such agreement before intoxication.

Was one of the partners under the influence of the drug and the other sober? In this case, it depends on whether the sober and the intoxicated partner were in agreement about having sex. If one of the partners , say, the woman, claims that they did not give consent, then the offender may be found guilty even if they were under the influence of the drug.

Was the plaintiff in a position to make informed decisions? This has been used to determine many cases from a legal standpoint. If the plaintiff (the accuser) has been proven to have been so intoxicated that they were not in a position to make coherent speech, may have experienced memory lapses or may have been mentally, emotionally or physically incapacitated by the drug, then a case of coercion can be raised and the offender will be found guilty of rape or forceful advances. The defense in this case would have to bear the burden of proof if they want to prove that the plaintiff was indeed in a position to make clear, informed decisions.

It is important for anyone initiating intercourse to ensure that the partner gives consent, whether both are high or not. When a case of non-consensual sex arises, the accuser usually has an upper hand. It is therefore important to ensure that you are in agreement with your partner to avoid any legal problems and problems later on.

If one partner introduces the drug to the other, that can be a part of coercion. Even if your partner agrees to take MDMA after being pressed to do so by you, sexual consent given while high may work against you later on. Once they are sober, the partner may claim that they only had sex because you pressed them into taking the drug, thus their judgment was impaired. As such, your motive may be suspect and may be a cause for a legal suit.

Self-blame: Many victims of drug-facilitated sexual assault actually blame themselves or the drug and not the perpetrator. ‘It was my fault – I was high.’ ‘I must have wanted to have sex at the time.’ ‘I can’t blame him – or her – he/she was high on a drug. It was the drug that made him do it. Normally he wouldn’t do that.’ For this self-blame and the feelings of being an accomplice to the act, over 70% of perpetrators go free or get off easy.

Confusion: Many victims have a problem understanding whether it was they or the drug involved in the decision to have sex. For this reason, many leave it at that. This can also be the ground for legal difficulties for both a would-be accuser and the defendant.

Consent must be clear: Under the law there is no ‘perceived consent.’ Silence and body language or lack of resistance cannot be considered as consent under the law.

Relationship does not equal consent: Whether sober or intoxicated, a partner can accuse the other of rape/assault regardless of whether they are married, boyfriend and girlfriend, strangers or on a first date.

A person high on MDMA or any other drug or alcohol can still be accused and charged with rape or assault. Factors that may be considered, however, is if the defendant was so intoxicated they don’t recall most of the details – or both were so intoxicated that the events are blurry. However, such a defendant may require a very good lawyer to win the case. They may still be charged with sexual assault, even if there was no intent.

If consent to have sex is already a murky area, then consent when high on a drug like MDMA makes it even murkier. It is no surprise that many perpetrators go scot free because the victims are not even sure if the perpetrators were under the influence or if they themselves (the victims) agreed to the act. Partners who have a sexual relationship or intend to have one should be very careful when initiating sexual acts under the influence. You never know what will happen when you come to your senses later on. There should be full understanding, and clear communication no matter how intoxicated you both are – which can be a challenge. Perhaps the best thing to do is to avoid making sexual advances or having sex under the influence of MDMA. That could be a tough call, because MDMA may be the very thing that drives you to a wild sexual encounter.

The next time you are out there partying and taking a dug like MDMA, consider the risk. Your night of fun could turn out to be your night of pain.

Human Connections

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