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Smashed! The Many Meanings of Drunkenness and Intoxications - contents

Chapter 5

The management of intoxication and drunkenness:
Crime and issues of regulation

Introduction

As we have seen so far many of the concerns that give meaning and shape to intoxication and drunkenness are related to the actual and possible consequences for the behaviours of individuals and groups/populations. These consequences are often related to individual and public health concerns (physical and mental), and/or various adverse outcomes in work, education and relationships. In this final chapter we present a discussion of the ways in which the problems of intoxication are understood, interpreted and acted upon when they become issues or concerns to be managed, regulated or subjected to legal considerations and judgment.

The discussion in what follows takes a number of directions. In the first instance we turn to an account of some of the ways in which media commentary tends to focus on the anti-social, even criminal, consequences of intoxication and drunkenness, and, for the media, the always incomplete, problematic and ineffectual ways that governments respond to and attempt to manage these issues. This background discussion leads to a review of the legal and criminological research and commentary on issues such as: the ways in which intoxication and drunkenness may mitigate personal responsibilities and accountabilities; the particular nature of choice, consent and responsibility in cases of sexual assault when intoxication is a factor; the dilemmas associated with various regulations related to the promotion and policing of the Responsible Serving of Alcohol (RSA) in various contexts; and the relationships between intoxication, violence and gender.

Anti-social behaviour, crime and the need for government action: The news media and its concerns with intoxication and drunkenness

At the heart of the news media’s understandings of intoxication and drunkenness is the question of the law. The Washington Post and the Otago Daily Times, for example, publish weekly crime and court reports that catalogue convictions and cases for ‘disorderly intoxication’ and ‘senseless drunkenness’ – that is, alcohol abuse that affects people other than the drinker. Much media commentary tends to spend a great deal of time examining the legal implications of intoxication, and whether impairment of ‘perception risk’ due to ‘self-induced intoxication’ – which is to say, drinking to intoxication can be used as a defence in court (see for example McFadden 2006; Sontag and Alvarez 2008; Otago Daily Times 2003; The Times 2003a; 2005; Cornwell 2006; Power, 2007a, The Washington Post 2002). There are a range of issues explored in articles dealing with the legal implications of self-induced intoxication including:

  • a New York Times story that examined the implications of intoxication on murder trials, and whether it could be judged that the murderer ‘was sufficiently sober to have formed the intent to kill the victims’ (Zhao 2003);
  • a law introduced in New Hampshire that enabled police to take young people into custody for alcohol that was already in their body (Fahrenthold 2006);
  • a New York Times report about a driver who was charged with driving ‘while impaired by alcohol’, even though his blood alcohol level of 0.09 was under the legal limit for intoxication (The New York Times 2001);
  • the liability for gun murder as a result of intoxication (Santana 2001);
  • the liability of drunk drivers (Lueck and O’Donnell 2004; Otago Daily Times 2004a; 2005a; 2006b);
  • whether drink driving that kills can be tried as murder (Vitello 2006), or as manslaughter (Jackman 2000);
  • the legality of breath testing – for while it is accepted that a driver’s breath test is admissible in a US court as proof of intoxication, there are questions about whether a breath test taken hours after drinking is reliable (Elliott 2000a; 2000b; Helliker 2006).

In addition to these sorts of concerns recent media commentary in settings such as the UK and New Zealand has canvassed the possibilities that Anti Social Behaviour Orders (ASBOs) can provide an effective governmental response to a range of problems associated with intoxication and drunkenness. These sorts of stories reference a growing body of health experts who argue that government intervention will never be able to solve the problems of alcohol abuse, since government intervention can only treat the problem on a society-wide level. At the same time commentators increasingly support calls for approaches that treat the individual drinker. For these commentators this might take place either through the introduction of ABSOs, or by supporting non-governmental groups such as Alcoholics Anonymous.

For example, some commentary in New Zealand has suggested that the introduction of ASBOs in that country mirrored the example set by Britain, where ASBOs were ‘introduced to act as a deterrent and to help rid local communities of troublemakers’ (O’Hara 2004). In Britain they can be served on anyone who is 10-years-old or over for a variety of offences (Horowitz 2005). The same attempt to regulate the behaviour of young drinkers prevails in New Zealand, where the term ASBO has come to be ‘a catch-all term for hooning, drunkenness, out-of-control youth, petty crime, unruly neighbours, intimidation and other acts of boorishness’ (New Zealand Herald 2007a).

Commentators such as Mary O’Hara (2004) suggest that ASBOs were introduced to act as a deterrent to the kinds of ‘nuisance’ crimes that governments fear can escalate into more serious crimes. They were designed to ‘rid local communities of troublemakers’. But a problem drinking culture is, she writes, ‘bigger than the person’. Any form of government intervention must therefore design ‘more appropriate help for people with drink-related problems’ than ASBOs, which seek to ‘address’ problem drinking merely by removing problem drinkers from sight (O’Hara 2004). Some in the media attack ASBOs, moreover, for the way they often impose ‘ridiculous’ restrictions on people. O’Hara (2004) cites examples including a person who was, apparently, given an ASBO for being sarcastic, and a boy who was banned from using the word ‘grass’ in England until 2010. ABSOs ‘set people up to fail’, she writes, ‘especially vulnerable individuals – who… need rehabilitation, not time inside’.

Media commentary also suggests that the British and New Zealand governments discovered how difficult it is to regulate drinkers’ behaviour when they introduced ASBOs. In considering the introduction of ASBOs to New Zealand, some news stories sought to point out the many legal difficulties the government would encounter in using them. Chief amongst these was the complaint that ASBOs contravene human rights. In some accounts commentators were critical of the way ABSOs are heard in civil courts, which means that ‘complaints do not have to be proven beyond reasonable doubt, merely judged on the balance of probability’ (New Zealand Herald, 2008c; see also 2007a). Not only do ASBOs rely on ‘naming-and-shaming tactics [that] take away the child’s right to privacy’ (see also Button 2005), but ASBOs are often used by police to manage people with mental health problems, when treatment would be more appropriate. There is also criticism of the way anti-social behaviour has been defined so broadly that it results in orders bordering on the ridiculous. The New Zealand Herald (2008c) cites some examples of this:

[A] 23-year-old woman who repeatedly threw herself into the Avon was banned from jumping into rivers or canals. A man with mental health problems was banned from sniffing petrol anywhere in Teesside… A 17-year-old was forbidden to use his front door. Then there was the evangelical preacher banned from London’s Oxford Circus, the football-mad teenager told to stop kicking a ball in the street, and the neighbour prevented from playing Dido albums over and over again.

The ambivalence and ambiguity characteristic of much media commentary about anti-social behaviours and drunkenness – and what governments should or can do about these concerns – is evident in the ways that Simon Jenkins (2006), writing in The Guardian, demands the British government intervene into the drinking culture of young people. Jenkins then laments that Britain is ‘the world capital of insufferable paternalism’, led by a government that ‘no longer trusts communities to exercise self-discipline through bylaws and licensing’ (see also Armstrong 2000). These criticisms are also evident in Australian media commentary. Malcolm Brown (2007) argues in The Sydney Morning Herald that the same kind of ‘old paternalism’ is responsible for the failure of a succession of Queensland government interventions into alcohol abuse in Aboriginal communities. A story in The Australian (Price 2006), in contrast, broadly supports the call of the former federal Health Minister, Tony Abbott, for a ‘form of paternalism’ to tackle the problems of alcohol abuse in Indigenous communities. Elizabeth Farrelly (2007) supports the ‘counter-intuitive’ strategy of ‘giving people more freedom and responsibility’, arguing that it ‘can make them behave less like children, [and] more like civilised adults’ (see also Brown 2007; New Zealand Herald 2007b). Ultimately, according to Julie Burchill (2001), government intervention in ‘people’s self-destructiveness actually makes the situation far worse’.

Central to media accounts of the consequences of drunkenness is the assumption that drunkenness causes harm. Concerns in these narratives include the role that drunkenness plays in promoting both ‘nuisance’ crimes such as ‘graffiti, drunkenness, intimidation and abuse’ (Button 2005; see also Phillips 2000; Hsu 2002), and ‘serious’ crimes, such as violence, addiction, rape and racism (New Zealand Herald 2008c). Drinking, so this narrative goes, leads first to minor or ‘nuisance’ crimes, which, if not addressed, ultimately develop into more serious crimes. The New Zealand Herald (2008c) looks at how crime can escalate from a seemingly innocuous beginning to becoming a significant social problem. The question the newspaper asks is: ‘Does graffiti cause murder?’ The idea that crime is spawned from disorder comes from the ‘Broken Windows’ theory outlined in a 1982 Atlantic Monthly article. The New Zealand Herald presents the following account of this theory: ‘Consider a building with a few broken windows. If the windows are not repaired, the tendency is for vandals to break a few more. Eventually, they may even break into the building, and if it’s unoccupied, perhaps become squatters or light fires inside’. The theory sees crime as an epidemic. A broken window can be a signal that no one cares, that anything goes and before long anarchy rules. According to the ‘broken windows’ theory of social disorder, if a society tolerates ‘nuisance crimes’ such as graffiti, or leaving buildings with broken windows, then its sensibilities will be stretched to the point where, in time, the nuisance of graffiti escalates into more serious crimes.

The New Zealand Herald (2003a) reported on one successful example of attacking nuisance crimes in the hope of preventing an escalation into serious crime in its report on how Baltimore overcame its history of violent crime (see also Rosen 2000):

Four years ago, Baltimore had the grim distinction of having the highest rates of violent crime and drug addiction of any big American city. Baltimore’s fortunes were transformed when its mayor, Martin O’Malley, ordered a blitz on the low-level offending that scarred communities. The city’s agencies were given targets for tackling vandalism and drunkenness and were repeatedly judged on them. He cites that as a driving factor behind Baltimore’s 26 per cent fall in violent crime since 1999.

This narrative is neither particularly new, nor unique to New Zealand. In a 2002 story in The New York Times, Santora (2002) suggests that the same concerns occupied the city’s Assembly in 1685: ‘The Assembly was “worried about the spillover from New Yorkers” drinking, and felt compelled to raise the fine on public intoxication, describing “that Louthsome and Odious sin” as “the root and foundation of many other Enormous Sinnes as bloodshed, stabbing, murther, swearing, fornication, Adultry, and such like”’. The Otago Daily Times (2005b) also suggests that intoxication escalates into crime, and further intoxication. The problem with intoxication, the court reporter writes, is that it can lead to a ‘lack of consequential thinking which leads to offending, then guilt and further intoxication’. The newspaper cites the behaviour of students at Otago University in Dunedin as an example arguing that ‘if the culture of couch-burning, drunkenness and general mayhem is allowed to continue, the numbers seeking enrolment here will drop and an increasing proportion of those who do come will be predisposed to disorderly conduct, since that will have become the main attraction’ (Otago Daily Times 2006a). In such accounts drunkenness and intoxication are implicated as causes of social disorder (see also Bowditch 2006; Miles 2002a; 2002b). This is reflected in The Washington Post’s preoccupation with cataloguing convictions for ‘disorderly intoxication’ in its weekly crime reports. Any attempt to address social disorder is therefore necessarily an attempt to address drunkenness and intoxication in society. But as the New Zealand Herald (2008c) argues, one of the problems with an approach to policing that seeks to deter the kind of escalation of disorder described by the ‘broken windows’ theory is that it gives the police ‘carte blanche to stomp out minor offences’, with a focus on punishment rather than rehabilitation:

The aim is not to reform the disorderly, but to punish, exclude and get them off the street. The idea was fervently taken up in the mid-1980s by the New York Transit Authority determined to remove graffiti from the subway. Line by line, car by car, graffiti was painted over or removed with solvents on a daily basis. A message was sent to graffiti vandals that their handiwork would never see the light of day. Similar strategies were applied to fare-beating. And in 1994, when Rudolf Giuliani was elected mayor, the strategy broke out above ground – a city-wide crackdown on street disorder, ranging from drunkenness to “squeegee men” washing car windows at intersections.

In contrast to the commentary on various forms of government intervention cited above, the Australian news media regularly carries stories about the problems facing individual drinkers. In one such story in The Australian it is claimed that the onus must be on helping the individual drinker: ‘The best thing to do is to stop taking substances by getting appropriate help. Short of living in a dry community, utopian or dystopian, the only way to stop addictive behaviours is for individuals to learn how to refuse alcohol… when faced with the opportunity of taking it’ (Gaughwin 2008). In spite of some commentators claiming that the onus must be on helping the individual drinker, it is rare for media stories to support organisations that seek to do that. As Fitzgerald (2007) writes, ‘psychologists and other health professionals consistently undervalue the proven effectiveness’ of organisations such as Alcoholics Anonymous in helping individual drinkers. He suggests that this is because ‘these groups are non-professional lay organizations that involve alcoholics and other addicts from all walks of life helping each other and, in so doing, helping themselves’ (see also Writer 2005; Power 2007b; Aratani 2007). In his account of how Alcoholics Anonymous helped him to beat his problem drinking, Andy Mayer (2001) writes that he only turned to the organisation after government facilities and the NHS failed to help him.

Governments tend to face intense scrutiny and criticism in media reporting of the consequences – intended or otherwise – associated with their attempts to regulate and manage issues related to intoxication and drunkenness. While The Washington Post pushes for Government intervention to help problem drinkers, the newspaper is quick to criticise when government agencies ‘miss’ the deaths of three homeless people (Kovaleski and Chan 2001). In another story The Washington Post criticises the police for their mishandling of a case involving two people who froze to death after being taken into custody for public drunkenness (Brown 2003). In Australia the Northern Territory government was also heavily criticised in a story in The Australian when its Department for Community Development failed to intervene to prevent the death of an Aboriginal baby (Wilson 2006). Simon Jenkins (2002), writing in The Times, suggests that the problem with relying on government intervention is that government alcohol policy ‘is driven not by reason or “the right thing to do”. It is driven by fear of the media, fear of a minority of public opinion, fear of message, image and spin’. The problem, in short, is that ‘there might be broad agreement about the problem – binge drinking, hospitalization and violence – but there is no agreement on how to fix it’ (see, also, Bachelard 2008).

The role of government intervention

Some of the more informed debate encountered in the press relates to the role – and extent – of government intervention in addressing the consequences of problem drinking. In a story in The Age, Associate Professor John Fitzgerald (2008) identifies the question at the heart of the public debate over the need for government intervention into drinking behaviours. He writes: ‘The biggest question… is to what extent we want our laws to control our desire to get drunk. Do we want government to control drinking behaviour, to educate us on responsible drinking, to protect us from alcohol-related violence?’

Julian Baggini (2004) writing in The Guardian provides a particular response to this type of question. In discussing the merits of government paternalism in relation to regulating alcohol policy, he argues that John Stuart Mill ‘was right that no actions that harm only ourselves should be illegal’, although there is, Baggini admits, a difference ‘between regulation and banning outright’. He continues: ‘That is why there is no mixed message in calling for a lift on absolute prohibitions on illegal drugs, while at the same time legislating to encourage responsible drinking and coming down hard on those whose intoxication risks harm to others’.

Simon Jenkins (2006), also in The Guardian, argues that in the context of finding solutions to binge drinking, the role of government must be to introduce laws and policies that limit the capacity for young people to access alcohol. If we want to understand why ‘24% of 15-year-olds’ claim they have been ‘drunk 10 times or more in the past year’, and how it is that ‘the UK ranks as the third highest out of 35 European countries in this particular league table’ (Travis 2007), we must first look at public policy’. After all, he asks: ‘What is Government for?’ (Jenkins 2007; see also Jenkins 2000; Riddell 2003).

But such behaviour modification is problematic according to Fitzgerald (2008), who argues that to rely too heavily on government intervention is ‘naïve’, especially in light of the ‘spate of violence in Melbourne’s CBD’ and other failures of the Victorian Government to control alcohol-related harm (see also Tippet 2008). And even when a government takes deliberate steps to regulate problem drinking, as the Howard Government did in 2007 in its intervention in Northern Territory Indigenous communities, whether such interventions can be successful is far from clear. For instance, in two reports on the Howard Government intervention, published only three months apart, The Australian gives contradictory accounts of whether the intervention is working. In July 2007, the newspaper described ‘“rivers of grog”…still flowing as strong as ever’ through Aboriginal communities (Kearney 2007a). In October of the same year, the paper writes that the intervention ‘has put food on the table and taken grog off the streets in Aboriginal communities’ (Kearney 2007b; see also Langton 2008; Skelton 2007).

In the UK and Australia media commentary has at different times focused on two proposed forms of government intervention in particular, but then criticised them both for being counter-intuitive. The first – the introduction of 24-hour drinking licenses in Britain – was aimed at curbing the trend identified by Jack Straw (the then-UK Home Secretary), whereby drinkers are forced to drink as much as possible before pubs close at 11 pm. Paradoxically, it was claimed that forcing pubs to close earlier in this way could actually lead to increased drunkenness and increased violence (Neilan 2000). The rationale for introducing 24-hour drinking licenses taps into the kinds of stories the news media often tells about the drinking cultures of other countries. In particular, they draw on the perception that ‘continental-style’ drinking is ‘civilised’, as Ian Jack (2005) writes in The Guardian. But he is also sceptical as to whether emulating a ‘European’ drinking culture will work in Britain, since what is essentially British about the British drinking culture is that for the British, getting drunk is only the means to ‘something more’ (The Guardian 2004b). In contrast, the image of the ‘civilised’, ‘contented drunk’ European simply does not appeal to the British drinker. Jack (2005) argues that:

I am with the many other sceptics who disbelieve that England’s new relaxed licensing hours will encourage more “continental-style” and “civilised” drinking, which is the government line. It won’t. There is in this country, the United Drunkdom of Great Britain and Northern Ireland, a singular pride and pleasure in the mass abandonment of sobriety. You might argue that the old ways, the privacy of the dark bar and its 10 o’clock bell, are what kept it in check.

A story in The Guardian also highlights the apparent contradiction involved in allowing pubs to be open 24 hours. This policy of ‘liberalisation’ is an odd tactic, argues Riddell (2003), because it will only exacerbate problem drinking rather than reduce it:

The Government says flexibility will stop a mass exodus of drunks at closing time. It hints that continental timetabling will substitute legless alcopoppers for Jean-Paul Sartre in Les Deux Magots or Italians with a meager Chianti habit and a grandma in tow. You don’t have to be a temperance freak to acknowledge that the real result could be city centres run as alcohol theme parks producing the big profits, and the odd dead child.

In another account The Guardian (2004b) is unequivocal in its position on this proposal: it will not work, the newspaper argues, because it is attempting to ‘make us both more free and more responsible’ in a system that has effectively taught the nation’s drinkers that they cannot be trusted ‘with a drink after the hour of 11pm’. These contradictions are, for a range of media commentators, the product of an ‘insufferable paternalism’ (Jenkins 2006) with ‘unpleasant Big Brother overtones’ (Devine 2008), which has shaped a ‘draconian’ and ‘archaic’ approach to alcohol policy: a situation in which ‘the nation’s youth, to say nothing of its more mature citizens, have grown up under an effective curfew and a semi-prohibition. In these rushed and draconian circumstances, it’s no wonder that we have developed an unhealthy relationship with booze’ (The Guardian 2004b; see also Jenkins 2001). Alan Travis (2007) argues that the proposal to introduce 24-hour drinking licenses is inconsistent with other forms of government intervention. He suggests that while the 24-hour licensing proposal will make alcohol more readily accessible, it contradicts other policies designed to tackle Britain’s binge drinking culture such as ‘cracking down on the promotional sale of cheap alcohol and happy-hour discounts’: and where alcohol is readily accessible from ‘supermarkets, late night shops and petrol stations’ (see also Macaskill and Gordon 2007; Knight 2008). The risk of 24-hour drinking licenses is, in these arguments, that they will end up promoting 24-hour binge drinking, and subsequently the escalation of the crime that it is meant to deter. Such concerns are to be found in much media reporting including the following account of the contradictions that The Guardian (2004b) identifies in the ways that Nottingham’s (UK) local council understands the problems of, and solutions to, public drunkenness:

In the interim, it might help if our towns and cities began to catch up with modern life. Fourteen years ago, Nottingham Safer Cities Project published a report to combat alcohol-related crime. It set out to reclaim the city centre for non-drinkers, or at least non-drunks, and recommended that transport, museums, galleries, cinemas, sporting facilities and bookshops should be encouraged to open later. A few weeks ago I saw about 100 bars and three restaurants, and nothing else that was functioning after dark in the heart of Nottingham. The local council told me that it had no plans to extend the tram’s working hours or even to build a public lavatory… In other words, the intention, and one that extends way beyond Nottingham, is to treat late-night city-centre visitors like unsocial drunks and just hope that they don’t behave that way. And if they do, well, that must be a problem for the police. Really, it’s enough to turn you to drink.

Some media accounts in Australia also suggest that allowing pubs to stay open for such long hours will encourage ‘pub crawling’. A story in The Sydney Morning Herald argues that longer opening hours encourages ‘thousands of… young Sydneysiders [to] drift from pubs to clubs in the early hours of the morning’. The newspaper therefore supports government calls to introduce curfews, in order to ‘crack down on alcohol-fuelled crime, violence and anti-social behaviour’ (Jacobsen 2003).

At another level there is substantial support in some parts of the Australian news media for government intervention in the form of raising taxes on the drinks that are most popular with problem drinkers. Health practitioners and researchers argue that raising taxes are the ‘single intervention best supported by evidence’ (Bachelard 2008). This is the so-called ‘Scandinavian’ approach to regulating alcohol consumption, which ‘imposes extremely high taxes, state control of advertising and state ownership of alcohol retailing outlets’ (Bachelard 2008). The logic of this approach is quite straightforward: ‘If alcohol causes harm, make it harder to get’ (Farrelly 2007; see also Shaver 2007).

While much media commentary responds to social incidents of intoxication and drunkenness, calling for some form of government response, in doing so, it reinforces particular ways of understanding intoxication and drunkenness as they relate to government, policy and the law. This commentary can also be productive of public concerns about intoxication and drunkenness. It can set the agenda in relation to these issues, and drive this agenda in particular directions. These directions can be contradictory and produce more uncertainty and complexity in terms of understanding intoxication and drunkenness, their consequences, and the nature of possible responses and forms of regulation.

Legal definitions of intoxication and drunkenness: Choice and mitigation of personal responsibilities?

As we have indicated, intoxication and drunkenness, and the difficulty of defining them, have a number of implications for the law. Unlike public health and medical discourse, where the study of intoxication and drunkenness is framed in scientific discourse and these terms are often defined with relation to counting drinks or measuring blood alcohol content, in legal discourse the volume, or amount of alcohol consumed is not the central focus of debate. This divergence points to the myriad ways in which expertise is constructed and mobilised by different disciplines in relation to these two terms. In the following discussion we are concerned particularly with various aspects of understanding intoxication and drunkenness in the context of legal discourses from Australia and New Zealand, the UK and the US.

Levi and Valverde (2001, 835) explain some of the difficulty of defining such a slippery concept as intoxication:

The legal entity of intoxication has an inherent tendency to undermine, and indeed to deconstruct, the opposition between opinion and fact evidence. Eyewitnesses can and do give evidence that they saw Mr. X consume three beers or, more commonly, that Mr. X was swaying while walking, had bloodshot eyes, or whatever. But the addition of a few such observations so as to produce the aggregate, somewhat diffuse, category of intoxication is a tricky epistemic operation.

Levi and Valverde (2001, 836) further argue that intoxication is not a fact of the kind developed from scientific investigation, and that ‘courts are pretty well united in allowing that nonexperts can indeed give an opinion about intoxication, and that scientific knowledge about alcohol and behavior is not required (Miller 1999 [see Appendix B])’. This interpretation is counter to much of what we have considered so far in this book. The suggestion that intoxication cannot be scientifically defined is very different to work undertaken and reported on here from the fields of health and medicine and social science which seeks to develop strict definitions of intoxication. We examine then, how the legal field approaches intoxication and drunkenness.

In the first instance we consider the use of intoxication in mitigating the level of responsibility for various criminal offences, including sexual assault cases. There are a number of factors to be considered in understanding how intoxication is understood and mobilised in a court of law. We examine the idea that intoxication can be either voluntary or involuntary and the possibility of making a free choice with relation to intoxication. In sexual assault cases, legal definitions of intoxication must consider the notion of consent in sexual encounters, and the role of intoxication in those instances.

Although the ‘intoxication doctrine’ states that intoxication is never a defence, Simester (2009, 6) argues that ‘it is surely preferable to accept the facts of the matter, and proceed on the basis of truth rather than pretence’. This argument suggests that to ignore the fact of intoxication is to misrepresent the facts of a case. As we discussed in Chapter 1, the question of responsibility while intoxicated is one that has been considered for centuries – especially in the philosophical discourses of Immanuel Kant and John Locke. For Kant, ‘the actions, for example, of a madman or a drunkard can be attributed, though not imputed to them. In imputation the action must spring from freedom. The drunkard cannot, indeed, be held accountable for his actions, but he certainly can, when sober, for the drunkenness itself’ (cited in Nicholls 2006, 136). Nicholls (2006, 136–137) finds Kant’s work relevant to notions of freedom and reason:

When freedom, reason and legal responsibility are inextricable one is, when drunk, neither properly free nor properly a subject. When drunk, one is neither subject to the law nor entirely outside of the law… when the ground of responsibility is the capacity for reason, then intoxication, incontrovertibly, presents mitigation. The locus of legal responsibility, therefore, becomes the sober individual who chooses to become drunk. It is here, however, that the problem of addiction comes into view, for to apply this principle the law needs to ask to what extent individuals are entirely free to choose whether or not to drink in the first place.

Of interest in this discussion is the link between criminal behaviour and the responsibility of intoxicated persons in the eyes of the courts. While there is a belief that alcohol use causes criminal behaviour, no evidence has been established about the causal link between intoxication and criminality. Despite this difficulty, intoxication is often raised as a mitigating factor. For example, one may claim that the crime committed and the level of intoxication is atypical of the defendant’s character. However, any history of offending while intoxicated, it is argued, ‘implicitly makes the individual more culpable, because he or she would be aware that such conduct can follow drinking’ (Dingwall and Koffman 2008, 339). To what extent past wrongs should influence sentencing for current wrongdoings is an issue that has long divided philosophers and legal theorists. In the mid-nineteenth century John Stuart Mill claimed:

Drunkenness, for example, in ordinary cases, is not a fit subject for legislative interference, but I should deem it perfectly legitimate that a person who had once been convicted of any act of violence to others under the influence of drink should be placed under a special legal restriction, personal to himself; that if he were afterwards found drunk, he should be liable to a penalty, and that if, when in that state, he committed another offence, the punishment to which he would be liable for that other offence should be increased in severity. The making himself drunk, in a person whom drunkenness excites to do harm to others, is a crime against others. (1859: 167 [see Appendix B]; cited in Dingwall and Koffman 2008, 339)

More recently a report titled Intoxication and Criminal Responsibility examined this question of the degree to which intoxication can be used as an excuse for criminal behaviour. The author points out that the law is not consistent across states in Australia and claims that some laws relating to intoxication are ‘uncertain, illogical, inconsistent, unprincipled and unduly complex’ (Bradfield 2006, 7). In 1996 the Australian High Court ‘abolished the common law defence of intoxication’ and ‘the Australian common law position… that intoxication, whether voluntary or otherwise, is a circumstance relevant to the establishment of the mens rea of any criminal offence’. Essentially, this new legislation claims ‘intoxication is irrelevant except in the case of offences that involve a specific intent’ (Howie 2004, 57).

It has been argued that intoxication makes it more difficult for the individual to assess the danger of a situation, therefore causing her/him to overreact or act out of mistaken beliefs of impending harm: ‘The criminal law has had to respond to a number of cases where an intoxicated individual attacked someone (and often killed him) in the allegedly mistaken belief that the victim was about to attack him’ (Dingwall 2007, 127). Reporting on recent activity in the Court of Appeals in the UK, Dingwall (2007, 127) examines the case of R v. Hatton. In this case it was found that, ‘if the defendant mistakenly believed that force was necessary to defend himself and that this mistake was caused by voluntarily induced intoxication, the defendant could not rely on self-defence’. The more specific question of the voluntary nature of the intoxication is considered below. However, here we see an example of how, when one makes the choice to drink to intoxication, the individual is to be held accountable for violent outcomes.

The amount of leniency an intoxicated defendant should receive is a matter of some debate. Dingwall and Koffman (2008, 340) explain that ‘some retributivists might argue that a first-time, intoxicated offender deserves a lesser sentence’ implying that one is less responsible for his/her first intoxicated encounter with the law. However: ‘After a certain number of offences the offender would lose all mitigation’. In this sense we encounter a third possible interpretation of intoxicated crime: it is an individual’s responsibility for being intoxicated in the first place. Dingwall and Koffman (2008, 346) argue that the mitigation plea is not nuanced enough to cover all possible offences that occur while individuals are intoxicated:

Not every individual who offends while intoxicated deserves that intoxication to be treated as mitigation. An individual who gets intoxicated and offends for the first time can justifiably be distinguished from an individual who gets intoxicated and offends, having done so previously. The former deserves to be punished, but deserves mitigation on the basis that the consequences of his conduct were less foreseeable. An individual who has offended while intoxicated before is aware of the possible (though not necessarily the probable) consequences of intoxication. Accordingly, a deliberate decision to continue getting intoxicated precludes the use of this factor as a mitigating argument if he subsequently offends.

The question remains: is any mitigation to be expected by a repeat offender? Dingwall and Koffman (2008, 346) continue to argue that the repeat offender ‘forfeits the right to mitigation. By deliberately following a course of action that he knows from personal experience may result in the commission of a criminal offence, he is as culpable as an individual who commits that offence while sober’. Following a rationalist approach to human behaviour, based on ideas of free will and a responsible individual, Dingwall and Koffman (2008) argue that mitigation for intoxicated behaviour should be graduated.

This theme is taken up by Tolmie (2001, 694) who argues that the ‘model of criminal responsibility that purportedly underpins the criminal justice system is premised on the notion that people have free will and rationality’. However, she suggests that intoxication can impair one’s capacity for choice, potentially on a number of levels. For instance, accountability is reduced:

in those situations where a person is deprived, at least to a significant degree, of free choice in relation to their actions, either because of mental impairment (diminished responsibility or insanity), emotional pressure (provocation), emergency (duress, necessity or self-defence), separation from their body (automatism), or irresistible impulse (diminished responsibility).

Echoing a Kantian position, Tolmie questions how much one’s choice to drink alcohol is a freely made choice. While these factors are taken into account concerning responsibility and accountability for criminal behaviour, moral culpability nonetheless remains, as alcohol consumption is most often considered a choice. Tolmie (2001) examines differences in relation to the responsibility and culpability of alcoholics when one adopts different models for understanding alcoholism (for example, as a habit versus a disease), and resultant intoxication when criminal activities are committed under the influence of alcohol. Although her overall arguments in relation to alcoholism are not of direct interest here we do consider the theoretical complexity in developing a stable, unified and comprehensive definition of intoxication or drunkenness that takes into account the notions of both responsibility and the voluntary (or involuntary) nature of alcohol consumption. In this context Dingwall and Koffman (2008, 338) can argue that: ‘The problem is not so much one of retributive theory but a lack of clinical agreement’.

The question of insanity is one that has been raised for intoxicated defendants and has been the topic of some debate for many years. What is known as the M’Naughten standard for a successful insanity defense defines insanity as ‘a defect of reason, from disease of the mind’ (Feix and Wolber 2007, 172). Therefore, does a defendant who is extremely intoxicated meet the criteria for insanity in a court of law? In Feix and Wolber’s (2007, 172) Intoxication and Settled Insanity they argue that in the US, it does not. It is useful in the context of our discussion to present some details of this claim. They point out:

The American Law Institute’s criterion for a successful insanity defense requires that the defendant be so affected by mental illness that he could not conform his behavior to the requirements of the law. Therefore, whether a defendant was using drugs or alcohol while committing a crime should matter little, if at all, to the question of insanity when the criteria for an insanity defense have not been met.

As Feix and Wolber (2007, 173) explain, there are a wide range of interpretations of this criterion across state courts in the US: ‘Interpretation could range from the prohibition of any defense when there is evidence of voluntary intoxication to allowing the insanity defense when voluntary intoxication has resulted in only temporary exacerbation of an existing psychosis’. In particular, the criterion is best met if it can be shown that the intoxication has made worse an existing symptom which exists independent of the intoxication itself. For example, in the US, in the case State v. Wicks, the court found that ‘the only time that drugs or alcohol may be successfully used for an insanity defense is when the influence of alcohol or drugs triggers an underlying psychotic disorder of a settled nature’. However, Federal Courts in the US rule out the use of the insanity defense when intoxication is deemed to be voluntary:

The United States Congress enacted the Insanity Defense Reform Act in 1984, which narrowed the definition of insanity that had developed in case law (and shifted the burden of proof to the defense at the “clear and convincing” level). The Senate Judiciary Committee, in discussion of the Act, stated that, “the voluntary use of alcohol or drugs, even if they render the defendant unable to appreciate the nature and quality of his acts, does not constitute insanity”.

In these sorts of circumstances Griffith (2008, 3) outlines a number of important considerations, including:

evidence of intoxication may be used by the defence to establish that the person did not act voluntarily, thus negativing the actus reus of the offence. Evidence of intoxication can also be used for the purpose of negativing mens rea. The actus reus refers to the act (either a positive act or an omission to act) as defined by the offence, that is required to attract criminal liability. A second element of a criminal responsibility is the mens rea (the guilty mind) of the accused. The mens rea of most serious crimes is generally expressed as an intention to bring about the requisite actus reus of the offence. Without the requisite intention, it is argued, the accused cannot be guilty of a criminal offence. The question is whether a state of intoxication can be said to prevent the formation of the required intent.

There are, then, cases in which voluntary intoxication may be considered a partial defence. For Feix and Wolber (2007, 173) this is relevant:

when the alleged offense requires a specific intent, or mens rea, which the defendant may argue that he could not have possessed due to the effects of intoxication. In most states, defendants are not held responsible for crimes committed under the influence of involuntary intoxication, because they are considered “unconscious” and unable to formulate the mens rea, or criminal intent, to commit the offense.

Feix and Wolber (2007, 173) provide an example to illustrate this point:

In the case of State v. Bush, the defendant appealed two first-degree murder charges arising from the killing of his former girlfriend and her boyfriend. He lost the appeal, but the court did record that: Voluntary drunkenness is generally never an excuse for a crime, but where a defendant is charged with murder, and it appears that the defendant was too drunk to be capable of deliberating and premeditating, in that instant intoxication may reduce murder in the first degree to murder in the second degree, as long as the specific intent did not antedate the intoxication.

English courts define ‘involuntary’ on a case by case basis and there are three main types of scenarios considered involuntary with only one relating to alcohol consumption – in this scenario, the individual has become intoxicated by fraud or coercion (Tolmie 2001, 696). Involuntary intoxication is also of concern for deciding consent issues in the law. In the UK involuntary intoxication is considered in section 61 of the Sexual Offences Act of 2003. This section states that ‘it is an offence for a person to administer a substance to another person, B, knowing that B does not consent and with the intention of stupefying or overpowering B, to enable any person to engage in sexual activity that involves B’ (cited in Elvin 2008, 153).

In this sense, argues Griffith (2008, 3–6), for a defendant to be considered liable, the nature of the act in question must been understood to be voluntary, or, ‘the product of the will or the conscious mind’. Intoxication, as we have seen makes these ideas problematic: ‘Perhaps intoxication impairs consciousness to such an extent that one could not be considered as acting from one’s own conscious will when intoxicated’. In fact, ‘evidence of self-induced intoxication is not raised very often because it is extremely difficult to establish that a defendant was so intoxicated that he or she was unable to form any intent’. It could be argued then that intoxication is difficult to define in a precise enough way for courts of law. Despite the need for clear definitions, even the law seems to conflate the terms intoxication and drunkenness. As Griffith indicates, ‘it is reported that the Government intends to “remove intoxication as a defence or a mitigating factor in crime – particularly assaults”. Instead, drunkenness would become an “aggravating factor” in sentencing’.

There are similar challenges for courts and legal processes in Australia. For example, in deciding the relevance of intoxication to assault cases the New South Wales (NSW) courts made a decision in the context of broader social concerns about the misuse of alcohol. In the Criminal Legislation Further Amendment Act of 1995 it was decided that an excuse of intoxication was unacceptable. The court found that ‘to excuse otherwise criminal conduct… because the accused is intoxicated to such an extent, is totally unacceptable at a time when alcohol and drug abuse are such significant social problems’. In conclusion, it was decided that if intoxication is undertaken voluntarily, individuals ‘should be responsible for his or her actions’ (Griffith 2008, 4). While the court takes the broader social world into account here, there is no consideration of the impact of the social or cultural environment on individual defendants, or more broadly, the culture of intoxication in which the defendant acts.

Dingwall and Koffman (2008, 335–337) argue that liability for criminal charges is attributed differently in different jurisdictions, however, these differences matter little since ‘very few individuals are sufficiently intoxicated to meet the extremely high threshold required to evade criminal liability in those jurisdictions where this is theoretically possible’. Where intoxication does really matter, according to Dingwall and Koffman, is for sentencing: ‘Whatever the provisions of the substantive criminal law, a high proportion of individuals will claim that they were intoxicated, at the time of offending, when it comes to the sentencing process’. They explain that in sentencing there is a requirement to assess the offender’s culpability and that: ‘It is, therefore, a question of real practical importance whether intoxication should affect a sentence… and if so, whether intoxication should be considered as a mitigating or as an aggravating factor’ (Dingwall and Koffman 2008, 336–337).

Sexual assault, intoxication and consent

In this section we outline and discuss a number of issues important to any discussion of the fraught relationship between intoxication, sexual practices and consent. Some of these elements are especially evident in media commentary. Indeed, the connection between drinking and sex is ingrained in the news media’s imagination, as is evident in a report in The Australian about the ‘lucrative booze and bonking cruise market’ (Lee and McDonald 2003; Stewart 2006). That there exists a connection between drinking and sex was confirmed, according to a story in the New Zealand Herald (2008b), by a 2005 study which concluded that unsafe sexual behaviour and regret of sexual behaviour were two of the outcomes of British binge drinking for 14- to 17-year-olds (see also Macaskill 2008). For Suzanne Goldenberg (2006) these concerns are heightened in that particular combination of drinking as a form of male bonding (especially in sporting teams), drunkenness, unsafe sexual behaviours and escalations of this into rape (see also Toynbee 2005; New Zealand Herald 2006a).

For the law, issues about levels of risk are not central to the facts of the case. Instead, the voluntary nature of intoxication and how permissible the use of intoxication is as a defence in a court of law, are issues that come up in a discussion of the legal understandings and implications of intoxication and drunkenness. In cases of sexual offence, where intoxication is involved, consent is a particular issue. In the UK, a case which went through the Court of Appeals, R v. Bree, illustrates many of the issues related to men and women voluntarily drinking heavily then having intercourse, resulting in a case of disputed consent. In these legal processes the notion of responsibility and risk are mobilised very differently to the ways in which they are used in other disciplines. We can identify a marked divergence in the court summary from the approach to notions of intoxication and drunkenness in public health and medical literature, as well as popular media, which emphasise the moral and health dimensions and consequences of young adults and alcohol use. As Rumney and Fenton (2008, 283) explain:

The court was at pains to emphasise that both parties were free to choose how much to drink and free to have intercourse if they wished: indeed “there is nothing abnormal, surprising, or even unusual about men and women having consensual intercourse when one, or other, or both have voluntarily consumed a great deal of alcohol”. It also pointed out that “it is not a question whether either or both was behaving irresponsibly”.

When it comes to legal processes involving alcohol consumption and claims of sexual offences, consent is a particular problem. Referring to R v. Bree, Elvin (2008, 153) explains that this case has established some working understandings of what intoxication is in relation to sexual assault and rape cases, particularly that ‘it does not necessarily deprive a person of the capacity to consent’: ‘drunken consent is still consent’. However, there is no clear definition of when exactly intoxication has occurred. That is, ‘it does not make it clear when a person lacks the capacity to consent because of intoxication’. Importantly, and quite in contrast to much of the literature reviewed in other chapters of this book, the judge ruling in this case decided that it was inappropriate to define intoxication in a generalisable way, by, for example, counting the number of drinks consumed:

it would be unrealistic to endeavour to create some kind of grid system which would enable the answer to these questions to be related to some prescribed level of alcohol consumption. Experience shows that different individuals have a greater or lesser capacity to cope with alcohol than others, and indeed the ability of a single individual to do so may vary from day to day. The practical reality is that there are some areas of human behaviour which are inapt for detailed legislative structures. In this context, provisions intended to protect women from sexual assaults might very well be conflated into a system which would provide patronising interference with the right of autonomous adults to make personal decisions for themselves. (Rumney and Fenton 2008, 286)

Elvin (2008, 154) rejects this finding offering that the law has set a quantifiable limit to intoxication through drink driving laws, in order to ‘provide a clear and unambiguous definition of consent’.

The law in the UK states that a person retains the ability to consent if voluntarily intoxicated and still conscious. However, as Rumney and Fenton (2008, 288) point out from the ruling itself, ‘the capacity to consent may evaporate well before a complainant becomes unconscious’. While responsibility and risk are not explicitly written into the law, section 75 of the Sexual Offences Act of 2003 in the UK provides conflicting levels of support for complainants:

if the victim is intoxicated due to the defendant’s actions then she merits the protection of section 75; if, however, she intoxicates herself she is denied this advantage and left to the “mercy” of the jury and the well-documented extra-legal factors which may come into play.

In other words, they argue the law implies that, ‘the “ideal” victim does not get herself drunk, she is able to control her own intoxication and if she does not do so, she does not deserve the protection of the law’ (Rumney and Fenton 2008, 288).

A case in the US at a private university further illustrates the complexities and ambiguities that are so evident in the consideration of the notion of consent while intoxicated. Wertheimer (2001, 377–378) explores the meanings of the Brown University Code of Student Conduct which finds a young man guilty of having sex with a girl who was intoxicated, despite her seemingly active involvement at the time. Here, again, it seems the notion of consent while intoxicated is not straight forward:

Sara (a pseudonym), a Brown University freshman, consumes approximately 10 shots of vodka in her dorm room one Saturday night. She walks a few blocks to a Brown crew party, then to a fraternity house to see someone she had been dating. Adam finds Sara in a friend’s room lying next to some vomit. Adam asks Sara if she wants a drink of water. Sara says yes. Adam gets her some water. They talk. Adam asks Sara if she wants to go to his room. She says yes. Sara follows Adam to his room without assistance, kisses him and begins to undress him. Sara asks Adam if he has a condom. He says yes. They have sex. They talk, smoke cigarettes, and go to sleep. In the morning, Adam asks Sara for her phone number, which she provides. “It took a while for it to actually set in”, Sara says. “When I got home, I wasn’t that upset. The more I thought about it, the more upset I got”. Three weeks later, and after Sara sees a “women’s peer counselor” in her dormitory, Sara brings charges against Adam Lack. According to the Brown University Code of Student Conduct, one commits an offense when one has sexual relations with another who has a “mental or physical incapacity or impairment of which the offending student was aware or should have been aware”.

The expectancy effects of alcohol consumption such as increased sexual arousal and aggression ‘allow people who have consumed alcohol to blame their actions on the intoxicant, but also encourage third party observers to excuse their behaviour or to deal with them more leniently where they know that they have been drinking’ (Finch and Munro 2007, 594). In fact, the difference is not only between defendant and complainant but, as Finch and Munro (2007, 593) argue, between the differences in expectancies and placement of blame between men and women. Citing Stormo et al. (1997), Finch and Munro describe these differences: ‘“the female’s intoxication is viewed as sufficient grounds for her partial condemnation, while for the male perpetrator, intoxication is regarded as a mitigating circumstance warranting at least some clemency in judging his behaviour” (Stormo et al., 1997: 303 [See Appendix B])’. They further suggest that:

The extent to which this is true is only magnified, moreover, by the existence of the one apparent exception to this rule, which arises where a sober defendant “takes advantage” of a drunken complainant. Here, despite her intoxication, it seems that the complainant will not be deemed to be more responsible (Wall and Schuller, 2000 [see Appendix B]) and it is more likely that observers will conclude that a rape has occurred (Norris and Cubbins, 1992 [see Appendix B]), since the defendant’s sobriety removes scope for leniency.

For Finch and Munro (2007, 593) intoxication is not explicitly defined but used conceptually in opposition to ‘sober’ and at one point in their analysis intoxication is opposed to someone having consumed ‘a few beers’. Here, though, we are interested in highlighting the ways that intoxication is mobilised differently between men and women in different scenarios. Not only is intoxication a factor for assigning responsibility to defendants of sexual assault cases, but it is also considered in assessing the involvement of complainants. Further, observers of such situations have been found to be influenced by the intoxication status of the individuals involved: ‘In a recent, and highly publicized, report (Amnesty International, 2005), for example, 30 per cent of respondents indicated that they would hold a complainant who was intoxicated at least partially responsible for having been raped, with four per cent holding her completely responsible’. Finch and Munro draw on social psychology to argue that intoxication impacts on interpretations of observers in this way and that this kind of interpretation is gendered. There is ‘a double standard that renders intoxicated defendants less responsible for intercourse than their sober counterparts while holding intoxicated complainants more responsible’. The ability to consent when intoxicated and how these abilities are interpreted by others are also, as we have seen, not straightforward issues. In the UK, section 74 of the Sexual Offences Act of 2003 states that: ‘For the purposes of this Part, a person consents if he agrees by choice, and has the freedom and capacity to make that choice’. Participants in the study by Finch and Munro (2007, 601) concluded that it is often the complainant’s responsibility to maintain her ‘freedom and capacity to make that choice’.

The dilemmas of the responsible serving of alcohol

The issues outlined here point to the difficulty in legal discourses of defining intoxication simply and universally. This uncertainty about the definitions, meanings and interpretations of the understandings of intoxication is also seen in the realm of hospitality. We consider some of the potential problems with responsible serving of alcohol laws in the US, Australia and New Zealand. In many countries people who serve alcohol in retail contexts are obliged by law to assess the buyer’s level of intoxication and refuse service to individuals who appear to be intoxicated. Linking intoxication to high-risk or harmful outcomes, the service industry is seen to be important for the management of intoxication.

In a review article, Graham (2005) illustrates a historical connection in Europe to what has come to be known as the ‘responsible serving of alcohol’ (RSA), and, like Levi and Valverde (2001), argues that it was not inevitable that those serving alcohol would become responsible in ways that they have for public order and personal levels of drunkenness: ‘The defining of this responsibility for publicans in early modern Germany is a clear precursor to the expanded legal and regulatory expectations placed upon servers of alcohol in recent times’ (cited in Graham 2005, 47–48). He argues that the placement of responsibility on the servers of alcohol is not inevitable and that it may be a particularly Western outcome. It is in this context that Levi and Valverde (2001, 824) describe the history of what they call a ‘devolution of responsibility’ to the very people subject to regulation. They argue that this devolution relies on the application of ‘nonexpert knowledge’. They suggest that ‘at the heart of the logic of licensing, it is assumed that untrained persons have the knowledge necessary to govern their own activities, as well as those of their clients or customers, or will at least acquire the necessary knowledge in order to retain their license’. They continue by considering what it takes to govern in this way:

The license holders are held responsible for their own actions and those of their employees, not just in terms of civil liability but also in terms of what one might call a semilegal “duty to know”. The knowledge useful for averting future dangers is of course often of an expert, professional kind. But, contrary to the tendency of sociolegal scholars to make knowledge coterminous with science and/or expertise, the knowledge that is expected of people such as bartenders (and for that matter of drinkers who own cars) is not scientific. It is a prescientific, qualitative, commonsense type of knowledge.

This type of knowledge, what Levi and Valverde (2001, 826) call ‘common knowledge’ is said to:

impute knowledge to lay people that they may not in fact have (or of which they may, in fact, have a specific and contrary knowledge). Common knowledge, then, is more of an ideal type than it is empirically verifiable, and it is also impossible to refute or contest on the basis of empirical investigation of what people actually know…

Importantly, Levi and Valverde (2001, 835) argue that this ‘subcontracting of paternalistic police powers to a group of entrepreneurs and workers who are not a self-regulated profession’ is important because ‘it suggests that the obligations envisaged by police regulations – the obligation to monitor, observe, and manage spaces and activities regarded as inherently problematic – are not monopolized by state officials or by members of expert, licensed professions’. In fact, under these sorts of regulatory regimes ‘ordinary citizens can and do participate in the regulation of urban nuisances and disorders’.

In Australia this responsibility is referred to as the Responsible Serving of Alcohol and courses are offered at various locations (through private companies and TAFEs) to potential service employees throughout the country. In New South Wales, ‘liquor laws place the onus on the licensees and their staff to serve alcohol responsibly’. Specific sections of the Liquor Act 1982 and the Registered Clubs Act 1976 ‘stipulate that a licensee shall not permit intoxication, or any indecent, violent or quarrelsome conduct on his or her licensed premises’ (Briscoe and Donnelly 2002, 3). More recently, through the Liquor Act 2007, it has become an ‘offence for a licensee to permit intoxication on licensed premises, or for a licensee or an employee to sell or supply alcohol to an intoxicated person’ (Griffith 2008, 1).

Some of the dilemmas and complexities associated with the possibilities of non-expert owners, managers and employees of licensed premises policing the intoxication of patrons through the responsible serving of alcohol are examined in research by Briscoe and Donnelly (2002, 4–5). They use data from a telephone survey of 1090 people, of whom 758 had drunk more than the 2001 NHMRC drinking guidelines (safe drinking at that time was considered no more than six standard drinks per day for men and four standard drinks for women) on at least one occasion during the previous three months, and were therefore included in the survey. They argue that the lack of a ‘statutory definition of “intoxication” in either the Liquor Act 1982 or the Registered Clubs Act 1976’ meant that ‘licensees and their staff generally must rely on some set of objective behavioural signs to assess a patron’s level of intoxication’. For this study, ‘eligible respondents were asked to indicate whether they showed any of the following five signs of intoxication: (1) loss of coordination; (2) slurred speech; (3) staggering or falling over; (4) spilling drinks; and (5) loud or quarrelsome behaviour’. While recognising the limitation of such a definition, they also claim that ‘these five signs are also consistent with information on signs of intoxication supplied to licensees in a Department of Gaming and Racing information sheet discussing important elements of serving alcohol responsibly on licensed vessels’. Survey respondents were asked how staff responded to their intoxication with the following eight options:

(1) they refused to serve me any more alcoholic drinks; (2) they asked me to leave the premises; (3) they called the police; (4) they advised me on or organized transport home; (5) they suggested I buy low- or non-alcoholic drinks; (6) they suggested that I buy some food; (7) they suggested that I stop drinking and (8) they continued to serve me alcoholic drinks.

Briscoe and Donnelly (2002, 5) administered their survey in the following way:

Items one through seven for this question were rotated across respondents, however item eight (relating to the continual service of alcohol) was always asked last. Items one through three were included because both the Liquor Act 1982 and the Registered Clubs Act 1976 define these as “reasonable steps” to prevent intoxication. Items four through six were included as they were consistent with guidelines issued in a Licensing Court Practice Direction relating to harm minimisation.

Briscoe and Donnelly (2002, 13) argue that the results showed that much of the drinking that occurs at licensed premises takes place when young adults are intoxicated: ‘Over half reported showing at least one of the five signs of intoxication investigated, while almost one in five reported showing three or more signs’. Furthermore, they found ‘only limited evidence of staff intervention to prevent the serving of alcohol to these people’. They suggest that:

Of those who said they exhibited at least one sign of intoxication, less than 3% were refused service and less than 4% were asked to leave the premises. For those who reported showing three or more signs of intoxication, less than 4% were refused service and only about 6% were asked to leave the premises. The most common response of licensed premises staff was to continue serving alcohol. Indeed, a higher percentage of those who reported showing three or more signs of intoxication said that they were continued to be served alcohol than those who reported showing one or two signs of intoxication.

Scott et al. (2007, 6) repeated this survey in 2006, with a slightly larger sample size, to assess changes to the provision of RSA in NSW after a number of initiatives were undertaken to improve the responsible serving of alcohol. In this follow up study a sample of 2427 young adults (aged 19–39) were asked the same questions as in the initial survey about their last drinking occasion at a licensed premises. Few changes were found, and still about 50 per cent reported at least one of five signs of intoxication. Similarly there were no significant changes found to the provision of RSA initiatives. However, this study did indicate a number of outcomes which seemed to suggest improvements on the findings of the initial research:

Firstly, the proportion of young adults drinking at a licensed premises who reported three or more signs of intoxication significantly decreased from around 19 per cent in 2002 to around 14.5 per cent in 2006. Secondly, the provision of RSA to this more intoxicated group of patrons increased across the two survey occasions. While less than 12 per cent of this group reported having received at least one of seven RSA interventions from bar staff in 2002, this increased to almost 28 per cent in 2006. In other words, while the likelihood of an intoxicated young adult receiving an RSA intervention was only around one in ten in 2002, this had improved to be better than one in four in 2006.

Hammersley and Ditton (2005, 499) identify and examine some of the unintended consequences of laws that require hospitality workers who serve alcohol to assess the drunkenness level of their customers and deny them if they believe they have had enough. They argue that ‘this may paradoxically encourage “non-drunken comportment” and may thus unintentionally promote high intake over many hours as long as overt signs of drunkenness are absent’. These researchers are concerned that focusing on public drunkenness is only one way in which policy must attend to the public health issues inherent in alcohol use. Here, drunkenness seems to be used as a term to describe the effects of intoxication, where drunken-comportment can be managed to hide the level of intoxication.

Other research considers whether hospitality employees are able to make such an assessment on the spot, given the lack of consensus of what actually constitutes drunkenness in licensed venues. Using the three physical displays of drunkenness which are used by the UK police to identify drunkenness (gait, eyes and speech) Perham et al. (2007, 379) compared subjective measures of drunkenness and blood alcohol concentration (BAC) obtained with an alcometer. Gait was categorised as normal, staggering or severely impaired, eye appearance was either clear or glazed and speech was considered clear, slurred or incoherent, rating overall drunkenness along a 10-point Likert scale where 1 was sober and 10 was ‘heavily intoxicated’. This study used a BAC of 0.15, ‘staggering gait on its own and a combination of any two, or all three physical attributes of drunkenness’ to ‘indicate that a drinker has consumed an excessive amount of alcohol and should be refused further alcohol’. They suggest that while staggering gait was ‘the most reliable indicator of drunkenness’ the other physical displays of drunkenness are useful indicators that may reliably be used by bar staff to assess whether a patron should continue to be served alcohol.

Recognising intoxication in others, and then being able to do something about it in the conditions and spaces that are characteristic of many licensed premises are not simple matters. One study tested the ability or willingness of American bartenders in a university town to serve pseudo-customers at varying levels of intoxication (non-intoxication, ambiguous intoxication, and obvious intoxication). This study defined intoxication levels in the following ways: Level 1, no signs of intoxication, yet knocking over a beer; Level 2, the pseudo customers portrayed two ‘ambiguous signs of intoxication (e.g. loudness and leaning on bar)’ before knocking over a beer, asking for another and then fumbling with money; and Level 3, portrayed five obvious signs of intoxication (e.g. swaying/leaning on bar, talking slowly, forgetting bartender’s name right after asking, poor eye contact, slurred speech), then knocking over a beer, followed by ‘three more signs of intoxication (e.g. fumbled while reaching for knocked over beer, difficulty finding money in pocket, dropped money while paying bartender) prior to asking for another beer’ (Goodsite et al. 2008, 547). A further illustration of the difficulties associated with predicting or recognising intoxication in others comes from Rosenberg and Nevis (2000, 34) who claim that ‘previous research… has found that years of experience as a police officer, bartender, or alcoholism counselor are not correlated’ with accurately judging another person’s level of intoxication. Likewise, in an attempt to find out if university students can be taught to recognise alcohol intoxication by their peers, Rosenberg and Nevis found that ‘most university students are unable to recognise moderate intoxication that results from binge like drinking (i.e., 3 to 5 standard drinks in 1 hr)’.

Kypri et al. (2007, 2594) conducted research related to New Zealand’s version of RSA which is called the Sale of Liquor Act (1989). The Act ‘prohibits pubs, bars and clubs from admitting intoxicated persons to the premises, from serving patrons to the point of intoxication, and from allowing intoxicated persons to remain on the premises’. Their study examined the limitations of this law, starting with the lack of a definition of intoxication or drunkenness. They argue that this ambiguity in definition ‘may make it difficult for licensees to comply with the law, for police to collect suitable evidence, and for a prosecution to be effected when a case is brought to court’

In the US, Responsible Beverage Service (RBS) programs ‘train alcohol servers to identify and refuse service to minors and intoxicated persons, and train establishment managers to implement policies and procedures to support servers’ intervention techniques’. The popularity of such laws is indicated by Mosher et al. (2002, 91): ‘A recent nationally representative survey of adults age 18 and over indicates that 89% of the population is in favor of policies mandating server training, and 88% are in favor of manager training to increase responsible service of alcohol’. Mosher et al. (2002) conducted a broad survey of 23 states in the US and varying programs in each state and suggest that there is much variability in the requirements throughout the country. Decisions about who must be trained, servers, managers or owners; whether only new businesses will have to train or all existing businesses; whether training is mandatory or voluntary and, whether incentives are given to encourage training are all issues that vary from state to state.

While the US has a number of laws relating to RSA, it has been shown that many of the same problems around identifying intoxicated patrons and refusal of service are common. The main reason for these problems is the common issue of the lack of an operational definition of intoxication that is useful to staff in busy venues, particularly with experienced drinkers ‘who have learned to manage (and therefore who have the ability to hide) physical symptoms of intoxication, such as slurred speech and difficulty walking, well enough to “pass” as not intoxicated’ (Reiling and Nusbaumer 2006, 654). Reiling and Nusbaumer (2006, 655–662) argue that some servers knowingly serve beyond intoxication due to ‘outside pressure or influence that overrides their concern for legal or socioemotional consequences of their behavior, such as guilt’. For example, staff may be pressured by ‘management to sell as much alcohol as possible or to keep the customer happy, or they could be willing to continue to serve rather than discontinue receiving tips’. The authors also suggest that economic interest in selling more alcohol by serving intoxicated customers influences the attitudes and practices of servers. For some of Reiling and Nusbaumer’s participants their own drinking practices impacted on their ‘willingness to over-serve’. Other factors have been found to influence servers as well. This study found that servers who are concerned about the consequences of liability laws may change their serving habits, but those who do not share such concerns are unlikely to be influenced simply by the laws.

The specifics of RSA laws are different in different places. As a consequence, civil liability laws that are related to RSA practices are always being redefined and challenged in the courts. In the following section we examine how definitions and understandings of intoxication are negotiated through the civil liability laws in Australia and the United States. Again, the discussion here is not meant to be extensive, but illustrative of a number of issues that are relevant to the concerns that we are exploring.

Civil liability for the consequences of intoxication in New South Wales and Queensland

The civil liability laws in both NSW and Queensland have been criticised for the way in which they uphold an ‘individual focus’ (Watson 2004, 131). Here we consider the implications of such an approach. The definition of ‘intoxication’ in the Civil Liability Act 2002, NSW s50 is: ‘a person being under the influence of alcohol or a drug (whether or not taken for a medicinal purpose and whether or not lawfully taken)’. Watson explains that in this context, the term ‘“influence” is not defined in terms of degree or any specific measure, such as blood alcohol content’ (Watson 2004, 127). Despite laws such as drink driving laws which define a certain level of BAC as intoxicated, Watson (2004, 128) explains that: ‘Experts largely agree that with a blood alcohol level of 0.02 or 0.03, alcohol will have some minimal influence on the drinker, although the legal limit in NSW for driving offences is set at 0.05’. The Civil Liability Act 2003 of Queensland also deals with intoxication and is similar to the NSW Act.

The ambiguous and vague ways in which much legal discourse treats definitions of intoxication and drunkenness has meant that some legal theorists have explored the possibilities offered by the sorts of bio-medical, scientific definitions that we canvassed earlier. Hamad (2005, 16), for example, uses these sorts of definitions and calculations to describe the effects of intoxication on pedestrian behaviours. What is defined as low levels of alcohol consumption (BACs between 0.02 to 0.05 g dL-1) is known to reduce peripheral vision, and impair speed and distance perception. This is opposed to high levels of alcohol consumption (such as BACs > 0.15 g dL-1), at which glare resistance is significantly reduced compared to a sober person. High levels of alcohol consumption are understood to further impact on motor coordination and balance, perception and response time. To better understand a case in which an intoxicated pedestrian was hit by an oncoming car, Hamad (2005, 17) provides some background on pedestrian collisions:

The incidence of moderate to high dose alcohol involvement (BAC > 0.10 g dL-1) among pedestrians appears to be greatest during the night, at weekends, and in collisions where the pedestrian was struck while crossing the road at some distance from a traffic control device (such as a pedestrian crossing)… amongst the motorists involved in the deaths of 95 intoxicated pedestrians on Australian roads in 1992, only 10 were intoxicated.

Given the drunken status of the pedestrian in these scenarios Hamad (2005, 18–19) indicates that the intoxicated ‘pedestrian may choose to initiate legal proceedings against the driver of the motor vehicle. In order to succeed, the intoxicated pedestrian must establish that the driver breached the general duty of care which drivers owe to all pedestrians’. This duty of care is surprisingly broadly defined. For example, ‘the fact that the driver was travelling in accordance with road traffic regulations or conditions at the time of the collision may not prima facie relieve the driver of liability in negligence’. Drivers are expected to ‘take account of the possibility of inadvertent and negligent conduct on the part of others’. With respect to intoxicated pedestrians, Hamad considers that they may be:

more readily noticeable to oncoming traffic through her or his lack of balance and co-ordination and/or irregular movements in stumbling along footpaths and in traversing the roadways. However, in other instances, diminished visual perception and cognition resulting from high-level alcohol consumption may make the intoxicated pedestrian’s road behaviour more difficult to predict.

Despite the difficulty described here, Hamad (2005, 19–22) notes that ‘in the majority of cases, the courts have tended to find a breach of duty where there was something in the conduct of the intoxicated pedestrian to alert the driver to the possibility that the pedestrian was engaging or may engage in aberrant behaviour’. In such instances the courts may assert the responsibility of the driver, not the intoxicated individual pedestrian. As Hamad goes on to suggest, the role of intoxication in cases such as these is specific to the character of the law. For each case, the courts consider ‘whether the consumption of alcohol, in particular the consumption of alcohol that gives rise to the blood alcohol reading detected in the intoxicated pedestrian subsequent to the collision, is… indicative of contributory negligence on the part of the intoxicated pedestrian’. Bio-medical definitions of intoxication are referenced in these contexts and intoxication as a physical state is defined via behavioural signs (for example, staggering), or ‘expert psychopharmacological evidence as to how the pedestrian’s intoxication (obtained from a blood alcohol reading) would have affected either the physical coordination or the mental processes of the pedestrian immediately prior to the collision’. So, it is not a clear cut case of whether intoxication does or does not inform decisions of the court in the apportioning of responsibility, or liability to respective parties. Instead, it is a factor which is ‘weighed in the scales when apportioning responsibility’.

The high profile case of Cole v. South Tweed Heads Rugby League Football Club Ltd (‘Cole’) illustrates some of these dilemmas. In this case, Australia’s High Court ‘considered the liability in negligence of a registered club for injury to a patron injured shortly after leaving the club in a state of extreme intoxication’. The Court held by a majority of four to two ‘that the appeal should be dismissed, there being no breach of any relevant duty of care’ (Dixon and Spinak 2004, 816). In this case, the customer who drank became ‘grossly intoxicated’ at the club, then walked home, rejecting the servers’ offers to call her a taxi, after they declined to serve her more alcohol and asked her to leave (Hamad 2005, 30). She left by foot and was hit by a car while walking along a road. In what follows we spend some time reviewing the court’s decision because of a number of ideas central to the case and our discussion, including: responsibility and expectations around responsibility for intoxication; questions of public policy; issues of privacy and individual consumption; and the role of the community in monitoring and regulating individuals and their consumption of alcohol. The decision in this case was that the intoxicated pedestrian ‘should be held legally and morally responsible for her or his own predicament’ (Hamad 2005, 39). Linking intoxication with individual responsibility, free will and personal autonomy, Hamad (2005, 39) argues that in a social context of ‘ever-increasing insurance premiums and personal injury suits, such a portrait may resonate with public opinion’ but the responsibility of commercial venues is diminished.

The High Court’s ruling highlights, above all, the role of personal responsibility and the problems with regulating at that level: ‘The Chief Justice [Gleeson] started from the proposition that the law protects the individual freedom of mature adults to make choices regarding the consumption of alcohol’ and continued to argue that the imposition of a duty of care on persons serving alcohol to prevent consumers becoming dangerously or excessively intoxicated would interfere with that freedom’ (Dixon and Spinak 2004, 818). Furthermore, it was argued that: ‘To impose liability on the server of alcohol for voluntary choices by the consumer, in the face of obvious dangers to them from such consumption, would be to fail to respect values of personal responsibility’ (Dixon and Spinak 2004, 818). Referencing understandings of the voluntary nature of intoxication, Justice Callinan stressed ‘that the decision to drink carried with it the known risk that the capacity to make decisions about further consumption would be progressively impaired’ (Dixon and Spinak 2004, 819). As such, the duty of care was not found to rest with the club and individual responsibility remained paramount. Adults could not ‘be expected to be ignorant of the intoxicating effects of the alcohol they voluntarily consumed’ (Dixon and Spinak 2004, 819–820).

However, in this case there were dissenting views which called for increased consideration of the duty of the venue, which, it is argued, relieves the plaintiff of some responsibility, given that ‘the common law does not hold the plaintiff absolutely responsible for their choices’ (Dixon and Spinak 2004, 820). In Justice McHugh’s view, since the club became aware of her high level of intoxication in the early afternoon before the accident:

its duty was then to take steps to prevent her drinking – not only by refusing to serve her alcohol, but also by warnings, by ensuring that she was not served alcohol purchased by others, and if need be, by removing her from the premises at that time. Having breached its duty in the early afternoon [because Cole’s drinking continued into the evening] it was irrelevant that the appellant later refused the offered transport (the very thing that might have been expected from allowing her to consume further alcohol) or that the Club relied on assurances by third persons. (Dixon and Spinak 2004, 820)

Watson (2004, 115) explains how Justice McHugh proposed:

that the duty of an occupier “to protect members and customers from injury as a result of consuming beverages must extend to protecting them from all injuries resulting from the ingestion of beverages… [including] injury that is causally connected to ingesting beverages”. If the supply of alcohol to a customer gives rise to “a reasonable possibility” of that customer suffering a type of injury not likely to be suffered by a sober customer, the club will be liable where the exercise of reasonable care would have avoided the injury. As he had pointed out in a previous case, “[o]rdinarily, the common law does not impose a duty of care on a person to protect another from the risk of harm unless that person has created the risk”. Here, the server had created the risk.

We cite this judge’s reasoning at length because it specifically addresses our concern to better understand legal definitions and understandings of intoxication, particularly with respect to responsibility. The dissenting view is that there is a duty of care by the club and that duty extends quite broadly. However, in the majority view:

Their Honours held that, once a person chooses to engage in an activity with known risks, the fact that they become increasingly unable to form judgments and take actions to avoid those risks does not diminish their moral responsibility for the consequences of their actions. Choices to assume a risk have a once-and-for-all character, rather than a more gradated or contextual meaning (such as, for example, a series of decisions to attend the breakfast, to drink the alcohol supplied, and to buy more alcohol after the alcohol supplied was consumed). (Dixon and Spinak 2004, 823)

Watson (2004, 109) argues that the majority decision in this case reflects ‘a distressingly narrow, individualistic approach to injury and duty in the context of intoxication; and that in so doing they have ignored the social implications of their stance’. Furthermore, Watson claims that:

attributing some responsibility for alcohol-related injury to those who both benefit from and are in a position to control alcohol abuse, would promote safety, deter irresponsible self-interested conduct, and set meaningful standards of acceptable behaviour. The result could be a much needed cultural and social shift towards more responsible alcohol practices.

Watson (2004, 115) goes on to argue that for cases where intoxication is an issue or concern an economic argument against holding venues liable for their customers’ well-being is not defensible: ‘the risks of injury are high, extreme intoxication is easily detected, and occupiers are in a very favourable position to take simple precautions against injury, as well as to pass on any extra costs to a broad client base’. Interestingly, in this legal analysis, intoxication is not defined, and is considered ‘easily detected’ despite the difficulty of definition and detection illustrated in the public health literature and the struggle of other legal theorists to define this term. Nonetheless, intoxication for Watson (2004, 116) is an individual state that extends beyond the consumption of alcohol served in a venue. In this argument there should be ‘an affirmative duty imposed on servers to prevent patrons from drinking to excess’ and that this ‘is a protective duty derived from the server’s control of both the premises and the supply of alcohol’. It is concluded, therefore, that this duty extends to both ‘injury on the premises and for the duration of the intoxication, which would include the journey home’. Watson (2004, 116) argues that by finding that intoxication is a problem for the individual rather than the community, ‘the High Court missed a clear opportunity to send a message about corporate responsibility in hazardous contexts’. Watson (2004, 131) reminds us that these decisions create a relationship to intoxication that could be imagined otherwise:

Talk of personal responsibility and autonomy in the context of alcohol service operates as a justification for denial of community responsibility for activities of dubious social worth, which benefit strong commercial interests and provide government revenue. Canada and the United States have demonstrated that contrary choices are readily available.

Watson (2004, 118–120) suggests that laws in the US which make venues or retailers of alcohol liable for injuries incurred by intoxicated patrons, on or off their property, are more favourable to the communitarian approach. As in Australia, in the US, laws related to alcohol intoxication are managed state-by-state. Generally, Southern states have laws which make venues least liable for intoxicated patrons, and, at the other end of the spectrum, California’s laws make venues much more liable. Illinois law, for example, states that ‘Every person who is injured within the state in person or property by any intoxicated person has a right of action in his or her own name, severally or jointly, against any person… who, by selling or giving alcoholic liquor… causes the intoxication’. This law is comprehensive in that no ‘proof that the defendant knew or should have known that the patron was intoxicated’ is required and ‘every person who sold the patron alcohol can potentially face liability’. Watson argues that ‘Such broad liability is intended “to place responsibility for damages caused by intoxicants on those who profit from the sale of alcohol” [and] to protect the health, safety, and welfare of the people from the dangers of traffic in liquor’. However, even in these contexts and jurisdictions defining intoxication is not straightforward. ‘Obvious intoxication’ can involve ‘significantly uncoordinated physical action or significant physical dysfunction’ in Missouri, or, in Texas, ‘a patron must be so obviously intoxicated that he presents a clear danger to himself or others’. However, ‘A narrower example comes from Minnesota, where dram shop laws impose liability only when an illegal sale of alcohol directly results in harm to an innocent third party, specifically personal injury, property damage, loss in means of support and “other pecuniary loss”’.

Liability laws vary from place to place, but the underlying debates are related. There is a shared need to apportion responsibility between individuals who consume alcohol and those who provide it. At the core of these concerns are two issues central to our discussion: how intoxication is defined and how it is understood. And there is no agreement or consensus on either of these questions.

Intoxication, violence and gender

As we have shown, the relationship between intoxication and the legal system is complex. We turn now to a discussion of the ways in which the relationship between intoxication and violence is framed in various settings. Media commentary on the consequences of drunkenness often focuses on violence. The connection between nuisance and serious crimes involving violence appears in a range of ways in the media in countries such as the US, UK, Australia and New Zealand. Often this occurs in discussions of sport and the behaviour of sports fans (see Barnes 2005; Felten 2008). The well-documented and publicised hooliganism of English soccer fans over the last 20 or so years is often referenced as being illustrative of the disorder and violence brought about by drunkenness (see Dudman 2008; Laville 2004; Lyall 2008; Marrin 2003; Riddell 2003; Sweeney 2008; Syed 2008; The Times 2003b). Sandra Laville (2004) describes a typical scene:

Stripped to the waist and drinking pints of lager from plastic glasses, England fans gathered in their hundreds on the Algarve yesterday for the crucial Switzerland match. At Lineker’s Bar and every neon-lit pub along a three-quarter of a mile promenade known as the Strip in Montechoro, the scene was the same. Snatches of Rule Britannia mingled with a chorus of Three Lions and chants of “Eng-er-land” in the countdown to the game. Two miles away, in a courtroom in Albufeira, the hangover from other nights like this had paraded in front of the judge to face accusations of hooliganism. As the referee’s whistle blew to a mass rendition of the national anthem on the Strip, the 33 fans arrested on Wednesday morning for alleged rioting were being bundled into police vans outside the court… The supporters, who were seized in a night of violence late on Tuesday and early on Wednesday, were asked by the magistrate whether they would volunteer to deportation. They all agreed and were asked for written affidavits in their defence to be logged at the court in 30 days’ time. Charges against them were adjourned.

Indeed, the figure of the football hooligan as the personification of the disorder caused by drunkenness – The New York Times calls football hooligans and ‘so-called lager louts’ the ‘public face of overconsumption’ (Lyall 2004) – has even penetrated into the otherwise docile world of petanque. In his discussion of some of the challenges facing the petanque establishment, such as alcohol-fuelled racism (see also Mydans 2003), Berlins (2007) invokes the figure of the football hooligan:

Gentle petanque had been tainted with the maladies usually associated with football supporters – drunkenness, brawling, hooliganism and violence – to the extent that, since the beginning of May, all competitions in the department of Nievre, in Burgundy, have been prohibited. There have been demonstrations by deprived players in the streets of Nevers, the departmental capital. The petanque establishment is asking for more protection from the local police, who answer by demanding that the sport put its own inebriated house in order. A touch of racism has entered the picture, with some blaming Gypsy travellers for starting the troubles in that area.

The Weekend Australian also ran a feature on the incidence of alcohol-related assaults and drink-driving convictions in rugby league, concluding that the code ‘is losing its battle against the bottle’ (Honeysett 2008). The same trends are also noted amongst Australian Rules teams (Jacobsen 2003). In 2001, for instance, The Age published a comprehensive list of the alcohol-related charges committed by AFL players (Munro 2001; see also Smith 2001; Tippet 2000). Others have argued that ‘the evidence shows that alcohol intoxication by itself is not a sufficient condition for alcohol-related violence, but can increase the risk in situations where there is a degree of conflict or frustration around human interactions’ (Stockwell 2001, see also Farke and Anderson 2007).

Whether alcohol causes violence has been a matter of some debate (Tryggvesson 2004; Tryggvesson and Bullock 2006). One recent Victorian report, the Victoria’s Alcohol Action Plan 2008–2013 (2008, 33; see Appendix B) suggests the link between intoxication and criminal behaviour: ‘The relationship between alcohol, crime and violence is complex. While intoxication does not always lead to offending, it has been estimated that 47 per cent of all perpetrators of assault and 43 per cent of all victims of assault were intoxicated prior to the event’. Nicholls (2006, 147) concludes that: ‘“The drink question” remains confused. Objections to acts of violence which may follow alcohol consumption, and concerns over health issues which can arise from certain patterns of alcohol consumption, continue to be conflated with associated, but distinct, concerns over intoxication’.

So, while the relationships between intoxication and violence are complex and ambiguous, there has been a significant amount of research that explores different dimensions of these relationships. In one study Olge and Miller (2004, 55–59) examined the effects of gender and acute alcohol intoxication on social information processing of hostile provocation scenarios. In their study they hypothesised that ‘when responding to each hostile provocation scenario, intoxicated individuals, compared with nonintoxicated individuals, would attribute greater hostility to the provocateur’. The authors also investigated the role of gender differences and hypothesised that intoxicated men would show greater hostile-aggressive processing alterations than intoxicated women in all domains as well as ‘greater differential hostile-aggressive processing on the basis of provocateur gender than intoxicated women’. The researchers claimed that male aggression was evident: ‘Intoxicated men evidenced more attribution of hostility than all other groups for both hostile male and hostile female scenarios and intoxicated men were sensitized to the hostility within the hostile provocations and interpreted the intentions of the provocateur as more hostile than any other group did’.

Male aggression is not only associated with violence toward others. In another study McCloskey and Berman (2003, 309) have suggested that intoxicated men also show signs of increased self-aggression, though, the causal link between intoxication and self-aggression is not clear. Their research involved 40 men (aged 21–45 years) with no history of drug or alcohol dependence or severe psychological problems. Using self-administered electric shocks, self-aggression was defined through the level of shock chosen. Participants who had ingested alcohol before the test ‘self-administered higher mean shock compared with participants who did not ingest alcohol, with alcohol accounting for about 33% of the variance in shock selections. Intoxicated participants also chose a “severe” shock at substantially greater rates than their non-intoxicated counterparts’.

In another study Tomsen (2005, 285–293) considered the nature of young men’s intoxication related violence. Tomsen was interested in a range of issues, relationships and practices that may have had some influence on the use of alcohol and intoxication and violence. These included such things as:

male identity, drinking histories and styles and the subjective experience of drinking and intoxication, especially in peer groups, perceptions of threat in public space and drinking contexts, the contrast between scenarios of violence and nonviolence, and the drinker’s own interpretations of the causes and pattern of aggressive and physically violent encounters.

Tomsen (2005, 285–293) conducted focus group interviews comprising 6–10 participants (aged 18–25 years) in NSW in 2002. Seven were in full-time employment and seven in part-time work. Ten were full or part-time students and six were unemployed. Participants were recruited from groups of men who drank regularly in local venues and a smaller number of security officers and venue staff who were employed in these locations. The participants ranged from university educated men to working class men whose ‘style of “disrespectable” working class protest masculinity was apparent in coarse and sometimes distinct language (e.g., more swearing and language such as “flogging” as a term for assault), overt sexism, racism and disrespect for authority’. Tomsen argues that violence was understood by these groups as linked to intoxication, because, as participants claimed, some people are ‘“idiots when they get drunk” or “bad drunks”’. Similarly, the men in this study considered the intoxicated aggression of others something to ridicule and laugh at, rather than participate in.

For one social group examined by Tryggvesson (2004) intoxication is not only a useful excuse for violent behaviour, it is also an acceptable one. Tryggvesson (2004) conducted focus group interviews with a total of 47 young Swedes (26 females; 21 males). Although this study did not examine the gendered implications of violence and drunkenness, it does discuss the influences of drunkenness and gender on young people’s understandings of violence. As Tryggvesson (2004, 250) explains:

A sober aggressor would be judged as mentally ill, but a drunk aggressor is a normal person who does stupid things. The drunkenness, however, protects him, so the stupid act does not transform him into a stupid person. Drunkenness also has a neutralization effect that implies that the act is viewed differently when the aggressor is drunk. With a drunk aggressor [violence] is just something that happens; with a sober aggressor, however, the act would be more severe – then it is an assault, and you report it to the police.

While no firm conclusions could be drawn on the use of intoxication as an excuse for behaviour that would otherwise be considered wrong, there were, nonetheless, limits to its use. That is, the more serious the act, the less leeway one receives for the excuse of drunkenness. This study found that sexual aggression, for example, could never be excused through drunkenness. On the other hand, ‘alcohol is the only explanation needed to make a fight appear rational and understandable’ (Tryggvesson 2004, 252). There were some contradictions in the way in which these young Swedish people were willing to accept drunkenness as an excuse and there were limitations to this approach. While believing that, generally, alcohol is not an excuse for bad behaviour, they were still willing to use it as an excuse when describing their experiences. Interestingly, Tryggvesson (2004, 254) reconciles this contradiction by suggesting that: ‘It is enough to understand that they can hold both of these beliefs, and that they tell us different things – that there are limits for what you can admit and other limits for what you can do’.

These themes were further explored in later research that surveyed over 1000 young Swedish men and women aged 16 to 25. Tryggvesson and Bullock (2006, 61–67) examined how intoxication works as an excuse in two ways: how much blame would be attributed to the aggressor and whether or not the incident would be reported to police. Respondents were presented with a vignette about provoked male assault in which two males, unknown to each other, meet at the local pub and following a brief argument one of them behaves violently. The researchers asked if alcohol was understood as an excuse for such aggressive behaviour. A number of variables were manipulated in the study to ascertain more precisely the role that intoxication plays. For example, the researchers changed the level of intoxication of the perpetrator: ‘he was described as either sober, feeling the effects (tipsy) or very drunk’. The severity of the violence was also altered: ‘In the low-severity version, the perpetrator pushed the victim so that he fell, and in the high-severity version he punched him until his nose started to bleed’. Finally, the relationship between the perpetrator and the victim was manipulated so that the participants were either best friend of the aggressor or the victim.

Tryggvesson and Bullock (2006, 73–74) argue that the link between intoxication and violence is a socially sanctioned outcome: ‘A drunk person becomes involved in violence because society approves of his drunkenness as an excuse for his behaviour’. While some variables, such as the relationship to the aggressor, did not influence attribution of blame (as shown in a study by Finch and Munro 2007), the victim’s alcohol consumption may ‘reduce blame for the aggressor’. In this study, ‘the range between highest and lowest attributed blame was smaller when the perpetrator was drunk compared to when he was sober’. These results were interpreted as indicating that the intoxication status of the perpetrator impacts the interpretation of events: specifically, ‘when the perpetrator was drunk the violence was something qualitatively different’. The authors suggest that:

When sober people fight, people recognize the difference between levels of severity, and it matters whether they are friends with the perpetrator or the victim. But when both are drunk, they are just drunk, and the fight is not a fight, it is just two drunks who behave as drunken people do.

In a study of Scottish men, masculinity and alcohol use, Mullen et al. (2007, 159) argued that intoxication plays a role in male violence. They suggest that it ‘tended to facilitate fight escalation, although the relationship was complex’. The complexity was found in the ways in which intoxication ‘can lead to impulsive behaviour, to assessing situations in simplified terms and to not thinking through the consequences of actions’. In a similar way to that claimed by Tryggvesson (2004): ‘intoxication was offered as an excuse. The man might claim that his behaviour would have been different if he had been sober’. For example:

[T]his guy was slagging off my friend because she’s Irish, because of her Irish accent. It was just a wee cat-fight. There wasn’t anything physical. It was verbal. It was drink. I wouldn’t have done that if I was sober. I would have ignored it. I was really annoyed that he was slagging her off.

Each of these studies finds that intoxication can be framed in different settings as a legitimate excuse for violence, and that behaviour which would not otherwise be tolerated is acceptable because it is believed that this kind of behaviour is an expected outcome of intoxication. Indeed, as Tyrggvesson (2004) and Tyrggvesson and Bullock (2006) argue, intoxicated violence might be interpreted as qualitatively different from sober violence.

Conclusion

In this chapter we have examined legal interpretations, definitions and understandings of intoxication and drunkenness as these emerge in a contested and debated manner, as well as, in a variety of settings, situations and contexts. In the complex, contested and contentious nature of these definitions; in the applications and uses of these definitions in different settings; in the ways in which these definitions are used to determine the truth of the matter in cases of sexual assault, violence and anti-social behaviour, we witness again the seemingly intractable dilemmas that have framed much of our discussion in this book.

Expert definitions and lay definitions, and the use of these definitions to account for personal and/or organisational/corporate responsibility for the range of consequences of intoxication and drunkenness are all involved in what at times appears as a noisy chorus of claim and counter claim. In such a contest we are left with little common ground on which to make judgments. We discuss what this complexity and ambiguity means, and where it might leave us, in our concluding chapter.

Cite this chapter as: Kelly, Peter; Advocat, Jenny; Harrison, Lyn; Hickey, Chris. 2011. ‘The management of intoxication and drunkenness: Crime and issues of regulation’, in Smashed! The Many Meanings of Intoxication and Drunkenness. Melbourne: Monash University Publishing. pp. 137–177.

Smashed! The Many Meanings of Drunkenness and Intoxications - contents

   by Peter Kelly, Jenny Advocat, Lyn Harrison, Christopher Hickey