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Can someone be too drunk to consent to sex?

On Behalf of | Dec 19, 2019 | Criminal Defense, Sex Crimes Defense |

It’s possible that if you meet someone at a bar and really hit it off, you might end up heading to your place or hers. Maybe some more drinks, and then the clothes come off.

But the next day, your fling could lead to serious trouble. What if the woman wakes up scared and confused? What if she leaves and calls the cops? What if you’re suddenly facing charges of indecent liberties? You may have thought your partner had consented, but could she have been too drunk to consent?

Alcohol and mental incapacity

According to Washington’s criminal code, your date could, in fact, be too drunk to give her consent. In Washington, consent needs to consist of “actual words or conduct” that are “freely given.” But if someone becomes drunk to the point that she’s “mentally incapacitated,” she can no longer give her consent.

This means that if you have sex while your partner is drunk, there’s a chance you could face charges of indecent liberties or some other crime. This was what happened when a University of Wisconsin football player found himself accusedearlier in the year. He had sex with two drunk women in April and claimed the sex was consensual. But the women claimed they were too drunk to give their consent.

How can you defend yourself against false accusations?

It’s scary to think you could be accused of a sex crime because your partner wakes later to claim there was never any consent. But as in the case of the Wisconsin football player, it’s possible for a good lawyer to challenge those charges with solid evidence.

In the Wisconsin case, that evidence consisted of:

  • Surveillance footage of the supposedly too-drunk woman walking down her stairs without problem
  • Footage of the woman talking calmly with the player after the alleged assault
  • A text message sent after their sexual encounter in which the woman had included heart and kiss emojis

Of course, if your date seems to be too drunk to think clearly, you can simply respect her. Wait until you and she are both sure she’s clear-headed enough to know if it’s what she really wants.

It could happen to anyone

Given how often drinks and dating go together, it’s possible for anyone to end up going home with a drunken date. And anyone could feel that they’ve been taken advantage of—men as well as women. Still, there’s a huge difference between morning-after guilt and a criminal case. People don’t need to be blackout drunk to make bad choices. Regret and mental incapacity are not the same thing.