|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 of an alleged victim abrogates the consent defense in a rape prosecution?
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?
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Whether intoxication of an alleged victim abrogates the consent defense in a rape prosecution?
Whether a consent given when intoxicated amounts to a valid consent in sexual intercourse?
Virginia Statutes, Code of Virginia, USCS, and case law
In the present submission, the issues to be addressed are whether intoxication can affect the capacity of a person to provide valid consent to sexual intercourse. If some degree of intoxication can affect the validity of any claimed consent, what is the test for determining the degree of intoxication that could negate any consent? To determine the drunkenness of the victim, there are no set standards, and the law specifically does not give any criteria for it. Our research will address these issues and in this particular query, the extent of the Eva’s drunkenness and whether her level of intoxication renders her legally incapable of giving consent to any sexual act.
Are mental incapacity and helplessness valid grounds to prove the victim’s inability to give legal consent to a sexual act?
In Molina v. Commonwealth, 272 Va. 666 (Va. 2006) the court establishes that nothing in the statutory definition itself limits the definition of "mental incapacity" to a permanent condition. Further, the definition refers to a condition existing "at the time of an offense" and does not limit its scope to non-transitory conditions. The Virginia Supreme Court holds that the term
"Mental incapacity" may extend to a transitory circumstance such as intoxication if the nature and degree of the intoxication has gone beyond the stage of merely reduced inhibition and has reached a point where the victim does not understand the nature or consequences of the sexual act. § 18.2-67.10(3).
The court in Molina goes on to state that the “only issue before us involves whether mental incapacity of the victim was properly included in the jury instruction as a method of commission of rape under the facts of this case.”Jury Instruction No. 14 in that trial stated:
In Va. Code Ann. § 18.2-61 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; he or she shall be guilty of rape.
The instruction continued:
The Court instructs the jury that the defendant is charged with the crime of rape. The Commonwealth must prove beyond a reasonable doubt each of the following elements of that crime:
- That the defendant had sexual intercourse with Stephanie Moroffko who was not then the defendant's spouse; and
- That it was against her will and without her consent; and
- That it was by force, threat or intimidation; or by the use of her mental incapacity or physical helplessness.
The Supreme Court in Molina goes on to state:
Considering the definition of "mental incapacity,” we must review the record to determine whether there was prima facie evidence presented to support inclusion of mental incapacity as a method of committing the crime of rape.
The evidence viewed in the light most favorable to the Commonwealth includes the fact that, at the time of the sexual acts, [the victim] was under the influence of alcohol and her blood alcohol levels were almost two times the legal limit for the lawful operation of an automobile in Virginia. This evidence was sufficient to enable a jury to conclude that victim was mentally incapable of understanding "the nature or consequences of the sexual act involved" at the time of the assault. We hold that there was sufficient evidence to instruct the jury that they could find [defendant] guilty of rape based upon victim’s mental incapacity of which he "knew or should have known" at the time of the sexual acts.
The Court in Molina v. Commonwealth, 47 Va. App. 338 (Va. Ct. App. 2006) elaborates:
Held that the crime of rape is, at core, an offense against the will and consent of the victim, irrespective of the manner and means by which the rape is accomplished. The inability to freely exercise will and give consent is not solely a function of force, threat or intimidation by the perpetrator. When the offense involves a victim who is mentally incapacitated or physically helpless, the inability to consent or willingly engage in the sexual act is inherent in the very condition from which the victim suffers, as the definitions make manifest. Consent without understanding is no consent at all. Similarly, physical helplessness rests on definitional elements, which in themselves signify the absence of consent or an unwillingness to engage in the sexual act. If the victim is unconscious or physically unable to communicate an unwillingness to act, consent surely cannot be established.
Could the woman have legally given consent with a level of intoxication of .157 measured 1 to 2 hours after intercourse?
Witnesses testified that victim consumed several drinks in a very short period of time. Victim was "extremely intoxicated" and "almost passed out." Other party attendants had to walk victim home. Victim testified that she did not remember leaving the party or going home, and she had only a vague memory of waking up before she was struck in the head. Victim was still intoxicated when she woke up in the morning. Under the circumstances, a rational trier of fact could find beyond a reasonable doubt that the degree of victim's intoxication reached a point where she did not understand the nature or consequences of the sexual act.
Similarly, in the present case the prosecution can argue that Eva was so drunk that it would have been difficult to resist advances made by Tom. They can argue thatEva was also incapable of giving legal consent for any sexual act.
Even if victim was not mentally incapacitated, the Commonwealth can argue that she was physically helpless. Va. Code Ann. § 18.2-67.10 defines physical helplessness as "unconsciousness or any other condition existing at the time of an offense, which otherwise rendered the complaining witness physically unable to communicate an unwillingness to act and about which the accused knew or should have known." See also Woodward v. Commonwealth, 12 Va. App. 118, 120, 402 S.E.2d 244, 245, 7 Va. Law Rep. 1926 (1991).
After being transported to the hospital, the victim was still unable to recognize her parents. The victim cried, moaned, and passed in and out of consciousness. An attending physician testified the victim smelled of alcohol, was lethargic, was difficult to arouse to verbal stimuli, and had a serum blood alcohol level of .12 milligrams per deciliter. The victim testified that she was drunk at the party, was taking antidepressant medication that day and did not have a condition which rendered her unable to recall events, and felt fine before she drank the alcohol at the party. The victim also doesn’t remember giving consent for any sexual act.
In the present matter, Eva was found to have a BAC level of 0.157milligrams per deciliter one to two hours after the incident. The permissible BAC limit is 0.08 milligrams per deciliter for a drunken driving violation in Virginia, which means that Eva was certainly intoxicated under that standard.
Va. Code Ann. § 18.2-61(a) states: “If any person has sexual intercourse and such act is accomplished through the use of the complaining witness's mental incapacity or physical helplessness he or she shall be guilty of rape.”
Based on the statutes, case law, facts, and prevailing circumstances described above, a strong argument exists that Eva’s mental capacity to understand the consequences of the sexual act prevented her from giving lawful consent to the sexual intercourse. The BAC test done shows a level of 0.157 milligrams per deciliter, which is almost twice the legal limit for the lawful operation of an automobile in Virginia. Therefore, the crucial issue will arise from any evidence supporting or challenging a claim by the prosecution that at the time of the incident Eva was mentally incapable and physically helpless to give any kind of consent to any sexual act initiated by defendant Tom.
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