Can I Be Charged for Sexual Assault If Someone Was Drunk?

Can I Be Charged for Sexual Assault If Someone Was Drunk?

Can I Be Charged for Sexual Assault If Someone Was Drunk?

People commonly find themselves wondering about how alcohol interacts with the law. In a situation where an individual consumes alcohol, they do not always make the same decisions they would have made had they been sober. This creates intense conflict between what an individual’s rights are when they are intoxicated, and furthermore how to deal with some of the decisions that an intoxicated person makes.

On the other side of the spectrum, how does the law deal with a situation where a sober person is interacting with an intoxicated person? Take this hypothetical for instance:

A friend decides to go to a party and is casually drinking with a bunch of other friends. At the party, a second person is drinking heavily. The casual drinker and the heavy drinker begin interacting with each other, and after one thing leads to another, the heavy drinker takes the causal drinker back to heavy drinker’s place. By this time, the casual drinker has only had a couple of drinks. The heavy drinker is, for lack of a better term, “hammered.” They have sexual intercourse, and in the morning the heavy drinker claims that she never wanted to have sexual conduct with the casual drinker. Can the casual drinker be charged with rape? The answer, which is common to many legal questions, is “it depends!”

New York Sexual Offense

In New York, Section 130 of the New York Penal Law governs sexual offense crimes. Lack of consent is an element of every single sexual offense defined in Section 130 of the New York Penal Code. Lack of consent results from either forcible compulsion, incapacity to consent, or the offense charged is rape in the third degree (see below). Our primary focus for this hypothetical will be incapacity to consent and rape in the third degree.

suspect locked in handcuffs

First of all, if an individual consents to sexual intercourse, and is capable of giving consent, then the other individual would not be charged with a sexual assault offense. However, in our hypothetical, we are dealing not just with a simple consent issue. The realistic question here is whether the heavily intoxicated drinker was capable of giving consent.

Looking back at the New York Penal Code, a person is deemed incapable of consent when he or she it: (a) less than seventeen years old; or (b) mentally disabled; or (c) mentally incapacitated; or (d) physically helpless; or (e) committed to the care and custody or supervision of the state.

Mentally incapacitated, according to the New York Penal Code, means that “a person is rendered temporarily incapable of appraising or controlling his conduct owing to the influence of a narcotic or intoxicating substance administered to him without his consent, or to any other act committed upon him without his consent.

Putting all of this together, in order for the casual drinker to be charged with a sexual assault offense, the heavily intoxicated drinker must have been incapable of giving consent. Remember, in our hypothetical, the intoxicated individual brought the sober individual back to their place. This implies consent (unless it was done under forcible compulsion, which was not the case here). Therefore, the only way in which a sexual assault charge may proceed is if the intoxicated person was incapable of giving consent to the sexual intercourse. If the intoxicated individual was mentally incapacitated, then they are deemed incapable of giving consent, and the casual drinker could be charged with a sexual assault crime.

Chargeable Sexual Assault Crime

The chargeable crime would be rape in the second degree, which a person is guilty of if he or she engages in sexual intercourse with another person who is incapable of consent by reason of being mentally disabled or mentally incapacitated. Rape in the second degree is a class D felony.

However, the facts here may not rise to a finding of mental incapacitation. Mental incapacitation requires an administering of an intoxicating substance without an individual’s consent. In our hypothetical, the heavy drinker was choosing to drink. If the casual drinker was continuously handing drinks to the heavy drinker, and the heavy drinker was attempting to reject them in any way, then the definition of mental incapacitation would probably be fulfilled.

Earlier in this article, we pointed out the importance of a rape in the third degree charge in New York for this hypothetical. Section 130.25 states that “a person is guilty of rape in the third degree when he or she engages in sexual intercourse with another person without such person’s consent where such lack of consent is by reason of some factor other than incapacity to consent.”

light brown gavel on law book American flag background

Depending on the evidence found in our hypothetical, the casual drinker may be charged with rape in the third degree if investigators find some other reason as to why the heavy drinker could not consent. Rape in the third degree is a class E felony.

All of this being said, each case is different! So yes, an individual who has sexual intercourse with someone who is drunk could be charged with either sexual misconduct or rape. But, as we outlined earlier, it depends primarily on the facts surrounding consent by the other individual.

If you’ve been charged with sexual assault, the experienced criminal defense lawyers of Sullivan & Galleshaw may be able to help. To set up a free and confidential legal consultation, call our law offices right away at (800) 730-0135.  You will not be charged any fees for your initial consultation.