Why ‘Can You Give Consent While High?’ Is The Wrong Question

We know that addressing the harmful culture of predation is essential. Focusing accountability solely on sobriety and treating acts of violence as secondary undermines the transformative change needed for a truly equal society.

We also know consent has been an issue with alcohol, and that cannabis affects people in different ways than alcohol does.

Most states have laws that state a person cannot consent to sex if they are incapacitated by drugs or alcohol. But the definition of “incapacitation” varies, as does the definition of rape—which was updated in 2012 by the United States Department of Justice, after remaining unchanged since 1927. For context, that is the same year carving began on Mount Rushmore.

The problem is the question ‘Can you consent when high?’ blames the cannabis, as if being stoned blurs the boundaries of what is right and just, and unfairly places the onus on the victim from the onset. If the spectrum of incapacitation is vast, shouldn’t the definition of consent—and how it’s executed by the law, regardless of province or state or substance—be all the narrower?

“In all my years, you’re the first journalist I know of who has drawn this connection between consent and cannabis,” says Deb Singh, a counselor and activist who has been working with survivors of violence at the Toronto Rape Crisis Centre / Multicultural Women Against Rape for nearly twenty years. “I hope this opens up the discussion, because a complex conversation like this, requires a complex answer. A better question is: how do we support folks in doing what is right for them, regardless of whatever drug they are using, and trust that when they say yes or no, it’s what they mean?”

The drug most widely used prior to sex is alcohol. Sure, it might lower inhibitions, but oftentimes, it’s at the expense of self-awareness and—depending on one’s weight and tolerance—two or more drinks increasingly depress the central nervous system too. Unlike alcohol, cannabis has never been shown to increase the risk of sexual assault.

“Drinking is numbing yourself. Marijuana, I would say, although I’m no expert, differs in the ways it can affect you. For some people, it relaxes them; for others, it’s a dissociative,” says Singh. “Ultimately, I do think you can consent while high, but that doesn’t stop you from knowing when something is right or wrong, and whether or not it’s okay for someone to be on your body.”

This brings us to something else we know to be true—and that Singh knows all too well: sexual assault is underreported, and substance use during sexual assault is further underreported.

“We need to believe survivors even if they were high when it happened,” says Singh, herself a survivor of sexual assault, who smokes weed on a daily basis as part of her own healing journey. “Trauma is intense.”

Ashley Manta, relationship coach and creator of CannaSexual®, says first and foremost, consent is based on communication and that no one is pressuring, threatening, or forcing you into something you don’t feel comfortable with.

“Negotiate before you medicate,” she says. “If you’re only starting to think about consent after you’ve already gotten high, you’ve missed an opportunity to be mindful about the connection you’re wanting to have.”

Consent is an eager and enthusiastic “yes,” and not the absence of “no.” Consent can be withdrawn at any time. Consent for one activity is not consenting for all activities. Knowing how cannabis impacts your state of mind is just one checkpoint along the way.

“For me, I stopped drinking entirely because I became disassociated and numb; I wasn’t present,” says Manta, who is also a survivor. “But with cannabis, I feel more connected and aware of my needs and boundaries.”

Regardless, she advises not to have any kind of intoxicating substance in your system if you’re planning on sharing space with a new partner, including having sex while high. And if you don’t want to worry about the conversation or want to take the head-high out of the equation, try CBD—a non-psychotropic cannabinoid—in the form of topicals, tinctures, bath bombs, or lubrication.

“There doesn’t need to be urgency when it comes to sex,” says Manta. “If you know each other and can read one another and you’ve built a body of trust and consent over time so you know they won’t push your boundaries if you’re intoxicated, cool; you do you. Otherwise, air on the side of caution and patience. It’s not going to be worse because you waited a day or until you were completely sober.”

While sexual assault prevention efforts should include discussions on the effects of cannabis, or combining substances, in order to decrease the risk of victimization, there should not, however, be one standard for all, especially when the layers of an individual’s experience with the plant—be it smoked, vaped, eaten, or dabbed—are extraordinarily varied and complex.

“If one person wants concentrates, but for the other, one hit of a joint sends them over the moon, what does it look like if either gets ‘too high?’ Ask: What signals could I look for? Do you become quiet and non-verbal, for instance? That’s something people need to start establishing,” she says. “And if I say to a partner, ‘these are the things I want to talk about beforehand,’ and they say it’s awkward and ruins the mood, well, I have no interest in sleeping with them anymore, anyway.”

With the legalization of cannabis spreading across the US, and recreational legalization in Canada as of Oct. 17, more research on cannabis’ independent effects will begin to emerge. As relevant as those findings will be, our understanding of cannabis—or any drug, for that matter—is not a precondition for the better world we’re trying to establish.

‘Can you consent while high’ is the wrong question because this type of mindset narrows to a disturbingly familiar point for too many women: speaking up is one thing, being believed is another. That both Ashley and Deb are survivors of sexual assault, matters. Whether they were high, does not.