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Is Intoxication a Defense to Rape?

By Daniel Taylor, Esq. | Last updated on

Although rape can certainly be committed by the use or threat of violent force, the crime of rape encompasses other forms of non-consensual sexual intercourse in which the perpetrator lacks the consent of the victim.

California legislators recently passed a law making the standard of consent for sexual activity on that state's college campuses "affirmative consent," meaning both partners must both say "yes" to sex, as opposed to just not saying "no." The bill also makes it clear that neither the victim being too intoxicated to consent, nor the perpetrator being too intoxicated to confirm consent can be used as a valid excuse for lack of affirmative consent.

The law's language does raise the question, however: Is intoxication usually a defense to rape?

When the Victim is Intoxicated

Rape is characterized by the lack of consent given by the victim. But what if the victim is intoxicated to the point where they are unable to provide consent?

If the victim is too intoxicated to provide consent, sex with the victim would likely be considered rape by intoxication. Generally, any situation in which the victim is unable to say "no," such as being intoxicated, asleep, or unconscious, may be considered rape if sexual contact occurs.

When the Perpetrator is Intoxicated

But what about situations in which the perpetrator is too intoxicated to recognize the need to obtain consent or the lack of consent on the part of the victim?

As with the majority of crimes, voluntary intoxication will not typically work as a defense. In some instances so-called "involuntary intoxication" -- such as when a person's drink is spiked or he or she is otherwise drugged without knowledge or consent -- may be used as a defense to a criminal act. But generally, any time you voluntarily consume drugs, alcohol, or other intoxicating substances, the crimes you commit while under the influence are still criminal.

When Both Victim and Perpetrator are Intoxicated

What if both the victim and the perpetrator are intoxicated?

Although this may make proving the facts of the incident difficult for law enforcement, regardless of who's intoxicated or how intoxicated they are, the fact remains: Engaging in sexual intercourse without the other person's consent is probably rape.

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