DateableWhy you wait when your date has had too much to drink
Someone too intoxicated to choose cannot consent. Your own drinking is no defence. Learn what the law says and how to help them safely.
If your date has had too much to drink, you wait. Consent means they can choose freely, and someone too intoxicated to think straight cannot choose at all. Your own drinking is no excuse: the law does not care whether you were sober or drunk when you chose to have sex with someone who could not say yes.
What the law says
In New South Wales, the law is clear. Affirmative consent means a person freely and voluntarily agrees to sexual activity. Under that law, a person cannot consent if they are so intoxicated they cannot choose or refuse, or if they are asleep or unconscious 1.
In Canada, the law also protects people who are too intoxicated to consent. Consent means the voluntary agreement to engage in the sexual activity in question. There is no consent where a person is intoxicated, or where an accused cannot rely on a belief in consent that came from their own intoxication or recklessness 2.
These laws apply regardless of what your date wore, where you met, or how much they drank earlier. They apply even if the two of you planned to have sex. The key question is simple: can they choose right now?
Consent is an active choice
Consent is not the absence of a no. It is the presence of a clear yes, given freely and knowingly. It is an ongoing process, and a person can change their mind and withdraw it at any time 3.
When someone has been drinking, you cannot assume they still want what they wanted an hour ago. Alcohol impairs judgment. It makes people less able to think through consequences. It makes them less able to say no. That is why it matters.
Signs they have had too much
- They are slurring words or having trouble speaking clearly
- They are unsteady on their feet or stumbling
- They are repeating themselves or forgetting what they just said
- They are having trouble following a conversation or making decisions
- They are more emotional than usual, or their mood is shifting quickly
- They are unable to remember how they got here or what time it is
If you see any of these signs, your date is impaired. That is the moment to stop and help them get home safely, not the moment to move forward.
How to end the night kindly
If your date is too drunk to consent, the generous thing is to make sure they are safe and get them home. Call them a taxi or ride-share. If they are staying nearby, walk them to their accommodation. Do not leave them alone if they are very drunk, and do not put them to bed in a place they do not know with you there.
If they suggest sex or a kiss, you have a choice. You can say no. You can suggest they rest instead. You can remind them that this conversation can wait until they are sober. Any of those is the right move.
I'm really enjoying getting to know you. Let's make sure you get home safely tonight. We can pick this up another time when you're not drinking.
That is clear, kind and leaves the door open. It does not shame them or make them feel rejected. It shows you are thinking about both of you.
What to do if you've been drinking too
Your own drinking does not change what the law says or what the right choice is. If you are too drunk to think straight, you should not be having sex with anyone, sober or drunk. If you are both too drunk to consent, you are both at risk. The way out is the same: end the night, get somewhere safe, and talk in the morning when you can both think.
This applies whether you are the generous member or the attractive member. If you are using your status or your money to persuade someone who is drunk to sleep with you, you are taking advantage, regardless of what you paid for the night. Safety and scams is a bigger topic, but this part is not negotiable.
Talk the next day, sober
If both of you want to, talk about it the next morning when you are both sober. You might discover the two of you have different feelings about what happened, or what should happen next. That conversation belongs in daylight. A person who is sober and rested can tell you clearly what they want, and you can tell them what you want. That is the only conversation that counts.
If you are not sure whether someone wants to see you again, ask. If you are not sure how they felt about the night, ask. Give them the chance to say no without shame or pressure. First date safety includes knowing how to keep someone safe. So does this.
If you are the generous member, remember that what matters is whether the other person chose you freely, not whether they chose you while drunk. The people worth knowing are the ones who choose you when they can think straight. For generous members, that is the standard.
Sources
- NSW Communities and Justice (2022). Affirmative consent becomes law in NSW.
- Department of Justice Canada, Policy Centre for Victim Issues (2026). A Definition of Consent to Sexual Activity.
- Healthdirect Australia (2023). Sexual assault and rape.
