The theme of a recent ABC news article is that a person who doesn’t remember must have been too drunk to give consent.
The information in the article is wrong. It is liable to confuse readers.
The article uses the words “blacked out” where perhaps it meant “passed out”.
“If a person is completely blacked out, for example, and they’re sexually assaulted, that’s a crime,” [Professor Flowe] said.
“It was a sentiment echoed by Ms Hunter. “In my experience working with victim-survivors, they often have their own set of questions around what’s happened, they do have gaps in their memory, but they’ve woken up questioning something for a reason, because it doesn’t feel okay,” she said. “And if they can’t remember what’s happened, then there wasn’t consent. And that is a sexual assault.”
Popular beliefs are at odds with the science. A lot of people hold mistaken beliefs about:
- When and how blackouts happen;
- What blackouts look like when they’re happening; and,
- How much alcohol it takes to cause some blackout.
“During a blackout, a person is able to actively engage and respond to their environment; however, the brain is not creating memories for the events. ….blacking out and passing out are very different states of consciousness. A person experiencing a blackout is conscious and interacting with his or her environment; whereas, a person who has passed out from alcohol has lost consciousness and capacity to engage in voluntary behaviour.”
“an intoxicated person is able to engage in a variety of behaviours, including having detailed conversations and other more complex behaviours like driving a vehicle, but information about these behaviours is not transferred from short-term to long-term memory, which leads to memory deficits and memory loss for these events.”
“Blackouts are much more common among social drinkers than was previously assumed, and have been found to encompass events ranging from conversations to intercourse. Fragmentary blackouts occur more frequently than en bloc blackouts, but neither type appear to occur until breath alcohol concentrations (BrACs) are 0.06 g/100ml or greater.” (blood alcohol concentration 0.06%. The general legal driving limit in Queensland is 0.05%) 
“When an individual blacks out, he or she will continue to hold conversations and engage in activities like normal. In fact, outside observers are typically unaware that an individual is blacked out. Depending on how much alcohol the person drank and how impaired other brain functions are, a person in the midst of a blackout could appear incredibly drunk – or barely intoxicated at all. ” 
In Queensland, a person must have the “cognitive capacity to give consent”. 
What does that mean? The Courts ask: Did the person have sufficient knowledge or understanding to comprehend—
(a) that what is proposed to be done is the physical act of penetration of their body by the male organ (or other thing), or, if that is not proved;
(b) that the act of penetration proposed is one of sexual connection, as distinct from an act of totally different character 
Sex will be lawful, in Queensland, if it “is consensual notwithstanding that the consent is induced by excessive consumption of alcohol.” The critical question is whether the person “had, by reason of sleep or a drunken stupor, been rendered incapable of deciding whether to consent or not.” 
In Tasmania, consent will be void if the person is “so affected by alcohol or another drug as to be unable to form a rational opinion in respect of the matter for which consent is required ”  That may or not be lower than the Queensland test. Even so, it is a long way from – “If you don’t remember you were too drunk to consent.”
In law, a person may have consented, even if they do not remember. In fact too.
From an ethical point of view, the person may appear to be fine and capable, but later not remember.
Memory, after the event, is an unreliable way of drawing the line.
A commonly heard comment is, “If you just don’t have sex with someone who is blacked out, you have nothing to worry about.”
The problem, of course, is that you cannot know what someone else will remember in the morning.
“outside observers are typically unaware that an individual is blacked out. …. a person in the midst of a blackout could appear incredibly drunk – or barely intoxicated at all. “
 Cited to Bryan Hartzler Kim Fromme , Fragmentary and en bloc blackouts: similarity and distinction among episodes of alcohol-induced memory loss. Journal of Studies on Alcohol, 64(4), 547–550 (2003).
I was unable to turn up any decisions which have interpreted the Tasmanian provision.
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