Legal implications

       I am sometimes asked by attorneys if I believe that a person is capable of acting voluntarily and intentionally during a blackout. Based on the findings of research, the answer clearly seems to be "yes". As detailed in previous sections, individuals are capable of engaging in a seemingly infinite range of deliberate activities during blackouts, from vandalizing property or committing other crimes to initiating or engaging in sexual activity.
       During a blackout, the areas of the brain involved in forming new long-term memories are temporarily knocked offline.  It is as if someone forgot to push the brain's record button.  The ability to recall memories formed prior to becoming intoxicated is far less affected by alcohol, as is the ability to keep information active in short-term memory for a few seconds or more. There are several important implications of these facts.   Because an individual in the midst of a blackout might be perfectly capable of carrying on conversations about the past and present and engaging in complicated activities, it can be extremely difficult, if not impossible, for someone to recognize that the individual is experiencing a blackout and will not recall these events later.   This fact can seriously complicate a determination of guilt in situations involving alleged sexual assaults in which the alleged victim cannot recall whether or not they were a willing participant in the event.  
       Sadly, the following scenario is not uncommon.  A female student either realizes or later learns that she engaged in sexual activity, perhaps intercourse, with a male that she might or might not know, yet has no memory of the event (White et al., 2004). Because this behavior might be completely out of character for them, they assume they must have been assaulted.  The male asserts that the female was a willing participant and might also indicate that she actually initiated the interaction (for an example see Eastman, 2002). Sometimes the evidence clearly indicates that sexual assault did take place (e.g., people witnessed the alleged victim vomiting just prior to when she supposedly consented to sexual activity), while in other cases there are compelling reasons to believe that both parties provided consent (e.g., other people witnessed the sexual activity occur). Regardless, in such cases the lives of all of those involved can be thrown into chaos and, whether or not a crime occurred, deep emotional scars can result.  A recent case at UC Berkeley provides a perfect example. Below are portions of a media report discussing the circumstances.

       In the case discussed above, the exact details about what transpired during that night will probably never be known. Perhaps the male in this case committed a blatant act of rape. Perhaps the female gave clear indications of consent but does not remember. Regardless, their lives will probably never be the same, nor will the lives of their families and friends.
       As mentioned above, during a blackout an individual should still have access to memories formed before the they became intoxicated. As such, the individual should be perfectly capable of remembering societal rules that they learned prior to becoming drunk. Simply put, intoxicated individuals do not lose the ability to recognize when their behavior is illegal or unethical.  However, they certainly might have difficulty acting on the basis of that knowledge.  At the levels of intoxication necessary to produce blackouts, a laundry list of other psychological functions is also impaired. Alcohol has a significant impact on decision-making, impulse control, judgment, and other higher order cognitive functions mediated by the frontal lobes in the brain. Colloquially, people often refer to this set of effects as reduced inhibitions. It is well-known that people often act out of character when intoxicated, and do things that they later regret. It is as if the brakes that keep us from acting on our impulses are removed, or at least very worn down, by alcohol. Alcohol produces what some researchers and clinicians refer to as alcohol-induced myopia. Myopia is a term that means near-sightedness, and many intoxicated individuals behave as though they are focused only on satisfying short-term urges without regard for the potential consequences of their actions. Again, it is not that the individual loses knowledge of right and wrong, they simply might not fully recognize, or care, about the potential consequences of their actions. For instance, if you asked an intoxicated individual about to commit an act of vandalism whether that action is illegal, they would probably say yes, but might still commit the crime anyway.
       In addition to impairing the ability to make good decisions and to consider the consequences of one's actions, alcohol also has an anxiety reducing effect for many individuals. This further reduces concern about the potential consequences of one's actions. I have never heard someone say that they made better decisions while intoxicated! The scenarios typically involve doing things they normally would not have done, and sometimes truly regret doing. If the individual in the midst of a blackout when doing these things, they simply will not remember the actions the following day.
       Violence and alcohol often seem to go hand in hand.  A relationship between alcohol and aggression certainly exists, though it is not entirely understood. Alcohol does not seem to cause aggression.   It is extremely unlikely that alcohol, at least in reasonable quantities, will cause a healthy, well-adjusted person to spontaneously start punching their neighbor.  However, in those who are already aggressive, alcohol seems to increase the likelihood that they will act on those aggressive urges. Similarly, alcohol has been found to increase the likelihood that a non-aggressive person will react in an aggressive way if provoked.  So, if a well-adjusted person is provoked by their neighbor, they might be more likely to respond aggressively.
       Context also seems to influence the likelihood that an individual will become aggressive while intoxicated.  Riots, discussed on a separate page, represent a prime example.  Sadly, it has become far too common to hear about groups of highly educated and otherwise responsible students clashing with police while rioting over something like the bars closing early due to daylight savings time.  
       In summary, it is certainly possible for an individual to engage in voluntary, deliberate, intentional, even strategic activities while in the midst of a blackout. These activities can include criminal misconduct, sexual interactions, driving a car, spending money, and more. It is also possible for an individual to be the victim of a crime during a blackout (i.e., blackouts don't indicate guilt or innocence, they simply muddy the waters!). In general, alcohol does not disrupt one's knowledge of right and wrong, though it certainly might interfere with the person's ability to base decisions on that information.  Essentially, anything that an individual can do while intoxicated, they can do while intoxicated and in the midst of a blackout.  In my judgment, to the extent that an individual is responsible for their actions while intoxicated, they are responsible for their actions while intoxicated and in a blackout.