|FROM:||The Legal Taxi|
|RE:||Whether intoxication of an alleged victim abrogates the consent defense in a rape prosecution?|
Legal consent for a sexual act.
Whether intoxication absolves the consent in a sexual intercourse?
Tom met Eva in a bar. Both she & he were drinking. She was flirting with a number of different men during the evening. Tom and the woman had not met before. After a while, she came by & flirted with him. They spoke, and eventually she invited him to her apartment. The both drank more there, and here the stories diverge. She claims that she told him that he should leave, he didn’t, and he forced himself upon her. She was, by her own report, quite drunk and unable to resist. After he left, she awoke and called the police. She was taken to the hospital for testing, and the tests confirmed that she had intercourse with Tom, and her BAC was .157 at the time of the test, which was somewhere between 1 and 2 hours after intercourse. Tom claims that the intercourse was consensual. The prosecutor is arguing that because of her intoxication, the woman could not have legally given consent, that she was too impaired by her intoxication to give legal consent. Does the prosecutor’s argument work? Can she be so drunk—at whatever level—so as to negate any possible consent?
- Relevant Statute & Case
- Summaries of Key Cases
A. If any person has sexual intercourse with a complaining witness, whether or not his or her spouse, or causes a complaining witness, whether or not his or her spouse, to engage in sexual intercourse with any other person and such act is accomplished
- against the complaining witness's will, by force, threat or intimidation of or against the complaining witness or another person; or
- through the use of the complaining witness's mental incapacity or physical helplessness; or
- with a child under age 13 as the victim, he or she shall be guilty of rape.
§ 18.2-67.10. General definitions
As used in this article:
- "Complaining witness" means the person alleged to have been subjected to rape, forcible sodomy, inanimate or animate object sexual penetration, marital sexual assault, aggravated sexual battery, or sexual battery.
- "Intimate parts" means the genitalia, anus, groin, breast, or buttocks of any person.
- "Mental incapacity" means that condition of the complaining witness existing at the time of an offense under this article which prevents the complaining witness from understanding the nature or consequences of the sexual act involved in such offense and about which the accused knew or should have known.
- "Physical helplessness" means unconsciousness or any other condition existing at the time of an offense under this article which otherwise rendered the complaining witness physically unable to communicate an unwillingness to act and about which the accused knew or should have known.
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