The recent legalization of marijuana in Washington state blurs the lines and raises the question: Can one legally give sexual consent when under the influence of marijuana?

Marijuana is still the most commonly abused illegal drug in the U.S., according to the College of Pharmacy at the University of Illinois.

In an article about drug-facilitated sexual assault, the University of Illinois College of Pharmacy reported marijuana can decrease aggressive behavior and motor skills and produce sedation in the consumer.

The lack of literature and research conducted in the past with regards to marijuana and sexual consent makes it difficult for experts and consumers alike to distinguish the effect marijuana consumption has on sexual consent, said Nikki Finnestead, WSU’s violence prevention coordinator.

“Marijuana has been illegal for a very long time, so we don’t talk about it or research it a lot in comparison to the amount alcohol consumption is researched,” Finnestead said. “However, I imagine that is something that is going to change if the federal legalization of marijuana occurs.”

Although there is more research on the correlation between alcohol and sexual assault, the number of studies coming out on the relationship between marijuana and assault is increasing because of legalization in some states, Finnestead said.

“I think in the instance that federal legalization occurred, participants might contribute in more research because there would be less of a stigma,” she said.

In terms of sexual consent, the consumer has to be aware of what is going on around them.

“If they are impaired to the point where they can’t understand their decisions, they cannot give consent,” Finnestead said.

As with any substance, one has to be aware of what’s going on in order to give consent because any time a substance is involved the consumer can become incapacitated, despite the different effects different substances have on the body.

According to the WAC 504-26-221 Sexual Misconduct definition provided on Page 15 of the Plan-It Palouse Academic Planner, “Sexual activity is nonconsensual when the person lacks the mental capacity at the time of the activity to be able to understand the consequences of the act, whether incapacity is produced by illness, defect, or the influence of alcohol.”

Adam Jussel, the director of the Office of Student Standards and Accountability (OSSA), said, “The real question is about incapacity more than anything else. So whether it’s because of marijuana or alcohol or a mental disability, the question we’re trying to get at is incapacity, as it relates to sexual consent.”

Although there is a difference between alcohol and marijuana use, educating students of the risks of these substances is OSSA’s end goal.

The lack of consent due to incapacity depends on the level of how affected the consumer is, Jussel said.

“OSSA and the Office for Equal Opportunity interpret the definition of sexual consent as this: If a person is under the influence of marijuana that in itself does not equal incapacity,” Jussel said.

Consent cannot be given if the person is unable to understand the nature and consequences of the act, which is what marijuana could do.

Thus it is OSSA’s job to determine whether the individual involved can understand the consequences and nature of their actions, Jussel said. If they cannot understand, their level of incapacitation is high, meaning they cannot legally give consent. Any sexual activity they might engage in, therefore, would be considered drug-facilitated sexual assault.

There are two types of drug-facilitated sexual assault, said Patricia Maarhuis, the coordinator of Alcohol and Drug Counseling, Assessment, and Prevention Services (ADCAPS).

Whether the victim is drugged without their knowledge or the victim consumes marijuana because he or she wants to, the perpetrator is using the drug as a tool to facilitate assault, she said.

“The perpetrator knows marijuana or alcohol provides a kind of social cover, making it easier for him or her to assault a victim,” Maarhuis said.

Maarhuis said research shows drug-facilitated assault is more commonly enabled by alcohol rather than marijuana consumption because alcohol can affect someone more acutely.

“In order to render someone helpless, alcohol is the better drug because you can actually pass out and lose your memory, while the use of marijuana is not as likely to lead to a loss of consciousness,” Maarhuis said.

Memory, perception, motor movement and thus the ability to defend oneself can be affected by marijuana use, however, making it useful to the perpetrator.

Legally, marijuana and alcohol are classified as substances that impair the consumer, meaning the ability to give consent is affected by both of them equally, Maarhuis said.

“Often there is more than one substance in the victim’s body,” she said.

Because experts and officials rely so much on self-report, accuracy comes into question, she said.

“The victim can’t always remember how much they have smoked or drunk, and I think what’s important to know is when you combine alcohol and marijuana there is a higher risk for black out, and if the victim is blacked out, they’re at a higher risk for sexual assault,” Maarhuis said.

Google searches of the words marijuana and sexual assault commonly result in articles showing the opinion that marijuana consumption in the place of alcohol consumption can help reduce the risk of being sexually assaulted.

Maarhuis said it’s important not to assume causation with the substance and sexual assault due to lack of consent.

“I understand people feel really desperate, and they want to decrease sexual assault, but I cannot support saying, ‘smoke marijuana instead of drinking alcohol and you’ll be safer,’ because that is not necessarily the case,” Maarhuis said.

While the effects of marijuana may not seem as harsh as alcohol’s effects, the substance can distort perception in the consumer and can just as easily affect memory and a sense of time, Maarhuis said.

“People may not be able to read cues like, ‘Oh this is not a safe situation,’ or have the ability to defend themselves,” Maarhuis said.

She said they may make decisions sexually they wouldn’t be comfortable with when sober, and they may not be present enough to use birth control.

While the idea that marijuana may be a better substance to use in order to protect oneself from sexual assault is tempting to believe, there is nothing to actually support this belief.

In the end it’s all about the perpetrator in terms of which substance, alcohol or marijuana, is more dangerous, Maarhuis said.

“If the perpetrator is intent on doing harm, he or she will,” Maarhuis said.