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Drunken Sex: Is it Rape? What You Need to Know.

Drunken Sex: Is it Rape?…

 

It’s fall.  The leaves are changing colors.  The morning air is crisp.  Pumpkin spice is being liberally sprinkled on everything.  Local colleges and universities are back and in full swing.  The pigskin is flying around area football fields.  And fans and students are pre-gaming and partying like it’s 1999.  With all that alcohol being consumed and all that partying going on, we need to talk about drunken sex and consent.  “Why?”  you ask.  Before I can answer, “Well, that escalated quickly,” you say.  Because if we don’t (talk) and you do (have drunken sex), your life could change forever. You could be accused of a sex crime.  You could be sexually victimized and assaulted.  You could end up pregnant, or get a sexually transmitted disease, or have it affect your psychological condition in ways difficult to quantify or explain.  You could get expelled from school.  You could have to register as a sexual offender for the rest of your life.  Really.  It’s a big deal.

Unfortunately, this kind of thing happens all the time all over the country. Even here.  For example, a few years ago, a local college student received national news attention for getting a young woman drunk, raping her, and filming it as it was happening.  This man plied a young woman with alcohol in his dorm.  They played drinking games—something extremely common at college parties.  She ended up drinking so much that she vomited all over herself.  She was so drunk, this man showed her off to others on his dorm floor.  The reports indicate she was on the couch, half naked, and mostly incoherent.  He supposedly told his dorm mates that he was going to “get laid.”  He then carried her off to his room while the stunned dorm mates called the police.  Incredibly and horribly, when law enforcement arrived, they located a cell phone video of this man having sex with her while she was wasted drunk.  After being convicted of Fourth Degree Criminal Sexual Conduct, he served jail time and is now required to register as a sexual offender.

In 2013, in another nationally covered event, members of an Ohio high school football team held an alcohol-fueled party. A teenaged girl got so drunk that witnesses described her as having vomited several times, having difficulties walking and talking, and even described as “seeming dead” while the boys carried her from place to place to have sex with her.  The teens were charged with sexual assault.  Their lawyers asserted the girl was not so drunk that she could not consent to sex.  Ultimately, these boys were “adjudicated delinquent” in juvenile court, which means that they would have been found guilty of the offense had they been adults.

Those cases are clearer cut than cases we normally see involving sex and alcohol or drugs.  The perpetrators in those cases were not intoxicated themselves, but the young women were seriously impaired.  In those cases, the young men knew, or clearly should have known, they were having sex with a person who could not consent to sex. There are, however, other types of cases where drunken consent is much more of an issue. Take, for instance, situations where people meet up, drink, and end up having a drunken one-night-stand.  They wake up and neither one really remembers what happened the night before. Both may regret what happened.  Maybe she gets pregnant from the encounter. Maybe they exchange some sexually transmitted disease.  Maybe one of them had a significant other they just cheated on.  What happens if only one regrets the encounter?  Is it rape?  How could he or she have consented while being wasted?  Legal commentators have complained that these types of cases are extremely difficult on both sides of the equation, and often do not fit within the neat legal definitions we have in our states’ criminal sex codes.  From the victim’s perspective, there is nothing more violative of their personal autonomy.  The psychological scars from a sexual assault never fully heal.  From the defense perspective, these cases are incredibly damaging.  Just the accusation of sexual assault—even if it is false—may ruin a person’s life forever.

These situations usually turn on “consent.”  Contrary to popular belief, there is no statutory or simple legal definition of “consent” in North Dakota.  Consent is a fluid, amorphous concept.  While there are clear instances where consent is either given or denied: “NO!!!! I DON’T WANT THAT!!!” and “YES!!!! I MOST DEFINITELY WANT THAT!!!,” many consent issues fall within a grey area.  Most of us engage in sexual conduct with implicit consent or sexual signals from our partners.  How many of you ask for permission to kiss someone?  Most don’t.  Most just go with the flow.  If it feels right and the vibe is right, you move in.  Very few people stop at every step and say, “now I’m going to put my hand here, okay?” and “now I’m going to kiss you here, okay?”  Human sexual relationships rely almost exclusively on implicit consent, which is based on our perception or interpretation of how our partner responds to our conduct, often in non-verbal ways, and our prior life experiences. Sometimes, that perception of “the green light” is just flat out wrong.  Moreover, even if we did ask for explicit consent, consent can be revoked at any time.  That is, consent could be given for a particular action and then during the act itself, consent could be revoked.  Of course, the other party must honor the revocation of consent immediately. Otherwise, it’s rape.  This is what I mean when I say consent is a fluid concept.

With all that interpretation necessary to determine whether you have consent, it’s easy to see how alcohol or drugs might complicate the matter.  An intoxicated person’s ability to accurately interpret these sexual signals is questionable at best.  An intoxicated complainant may give, consciously or subconsciously, sexual signals to their partner.  For instance, a person might seem to be looking deeply and longingly into the other person’s eyes when, in reality, they’re having a hard time focusing on anything due to alcohol intoxication.  Or on the other hand, the intoxicated defendant may misinterpret or misperceive what they consider sexual signals, when in fact, no such signal was actually given.  That is, the intoxicated person misperceives or ignores the lack of affirmative consent from the other party.  Either way, intoxicants quickly complicate the consent issues.

Most states have laws partially addressing the drunken sex issue; however, many of those laws are not particularly clear.  In North Dakota, our gross sexual imposition law punishes people that willfully engage in sexual acts with another person when the person or someone with that person’s knowledge has substantially impaired the victim’s power to appraise or control the victim’s conduct by administering without the victim’s knowledge intoxicants with the intent to prevent resistance.  Stated plainly, this provision punishes those who give others drugs or alcohol with the intent on rendering them unable to consent to sex without the victim knowing about it.  This is the “roofied drink” situation, which we don’t see all that often.  Our gross sexual imposition law also punishes those who know, or have reasonable cause to believe the victim is unaware that a sexual act is being committed upon them.  This provision is how North Dakota prosecutors often have to pursue these cases.  For the charges to stick, the defendant has to know the person is completely passed out and unconscious, or have “reasonable cause to believe” the victim is passed out to where they are unaware that sex act is being performed on them.

In Minnesota, the law is much clearer.  Unlike North Dakota, Minnesota statutorily defines consent as “words or overt actions by a person indicating a freely given present agreement to perform a particular sexual act with the actor. Consent does not mean the existence of a prior or current social relationship between the actor and the complainant or that the complainant failed to resist a particular sexual act.”  Minnesota law also makes it clear that a person who is “mentally incapacitated or physically helpless” cannot consent to a sexual act.  It defines “mentally incapacitated” as situations where the person is under the influence of alcohol, a narcotic, anesthetic, or any other substance, administered to the person without the person’s agreement lack the judgment to give reasoned consent to sexual contact or penetration.  “Physically helpless” victims under Minnesota law are those who are asleep, unconscious, unable to withhold consent or withdraw consent due to a physical condition, or are unable to communicate nonconsent and the condition is known or reasonably should have been known to the actor.  This provision made it much easier to prosecute the college student in Minnesota than it would have been to prosecute him in North Dakota.

From a defense attorney’s perspective, sexual assault and gross sexual imposition cases are extremely complicated.  The outcome often depends on the facts and circumstances surrounding the encounter.  I have handled many of these types of cases.  In light of how serious these offenses are and how they can impact your life forever, you should consult with a very experienced criminal defense lawyer.  Give Nick a call at 701-478-7620 or email him at nick@fremstadlaw.com.