Content warning: discussion of rape

What You Need to Know About Whether Drunk Sex is Considered Rape

It can be difficult to discern what constitutes rape. Here’s everything you need to know about whether drunk sex is considered rape.

Alcohol is dubbed the date-rape drug because it can render you incapable of consent to sexual activity. If you are raped while under the influence of drugs or alcohol, you should understand that any sexual misconduct is never your fault.

Federal Rape Laws

Under federal law, rape is the nonconsensual penetration of the vagina or anus or any oral penetration.

State statutes determine the penalty for a rape conviction.

Consenting to Sexual Activity

Both parties must give clear consent to sexual activity. Sexual consent means an individual actively and freely agrees to participate in sexual activity.

Related: Sex and Gender Differences in Crime

You cannot legally consent if you are:

  1. Threatened, forced, coerced, or manipulated into agreeing
  2. Physically incapable (e.g. drunk, high, drugged, asleep, etc)
  3. Mentally incapacitated (e.g. disability)
  4. Younger than the state-regulated age of consent

If an individual does not provide active and verbal consent, any sexual activity is deemed sexual assault.

Here’s important information to understand about consent:

  1. Consent is a bilateral decision whereby both parties provide an affirmative and clear interest in participating in sexual activity.
  2. An intoxicated individual cannot give clear consent.
  3. Consent requires the individual to verbally say they want to engage in sexual activity.

The absence of the word “no” does not give an individual the green light to initiate sexual interactions.

4. Even if an individual consented to a certain set of sexual acts, this does not mean the individual agrees to other sexual activities.

If an individual ingests drugs or alcohol, they may be incapacitated and unable to consent. Drunk sex can be considered rape if the perpetrator knew or should have known the victim was incapacitated and thereby unable to legally consent to sexual activity.

The individual initiating the sexual activity is responsible for obtaining consent, regardless of whether they are also under the influence of drugs or alcohol. Hence, the perpetrator can still face rape charges even if they were intoxicated during the sexual activity.

Related: Is It Statutory Rape for Two Minors to Have Sex?

The Blurred Line of Sexual Consent

Drugs and alcohol blur lines of clear and consensual sexual activity because:

  1. They impair your judgment
  2. They affect your capacity to communicate
  3. They mpact your ability to accurately construe communication

Even if an individual has been drinking, they can still give consent if they can make informed decisions devoid of any pressure, coercion, and incapacitation. An individual incapacitated by alcohol or other drugs cannot give consent.

An individual is intoxicated at the point at which alcohol noticeably changes their mood and physical or mental abilities.

Some signs of intoxication include the following:

  1. Slurred speech
  2. Inability to walk in a straight line
  3. Exaggerated emotions

Incapacitation is a state beyond pure drunkenness.

Some signs of incapacitation include:

  1. Inability to speak coherently
  2. Confusion on basic facts
  3. Inabiliy to walk without assistance
  4. Passing out

If you are unsure as to whether an individual is too intoxicated to provide consent, it behooves you to refrain from engaging in any sexual activity. You should always abide by the axiom, “if it is not sober consent, it is not legal consent.”

Sexual Assualt Hotline

If you or someone you know has been a victim of rape, a plethora of resources are available.

Here are some resources to find help:

https://www.rainn.org/resources

https://laccw.lacounty.gov/publications-resources/helping-hands/

https://cvsolutions.org/rape-crisis-center/

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If you or a loved one would like to learn more about Is Drunk Sex Considered Rape, get your free consultation with one of our most qualified attorneys today!