How Drunk is Too Drunk to Consent?

Sometimes a night of drinking leads to devastating actions and accusations. We’ve all heard a scenario like the following: Two party-goers pair up and have sex. The next day, one person accuses the other of rape. The alleged victim says they were too drunk to give consent. But were they? Sex crimes attorneys, like the law firm of Kirsch & Kirsch based in Jefferson City, MO, can uncover whether the alleged victim was too drunk to give consent… Or not. 

What Missouri Law Says About Consent

Ten years ago, Missouri lawmakers clarified how drunk is too drunk to consent. According to §566.031 of the Missouri Revised Statutes, individuals cannot give consent when:

  1. They are incapable of making reasonable judgments because they are intoxicated by drugs or alcohol.
  2. They are passed out from drinking too much.
  3. They have been drugged.
  4. They are unconscious for another reason. 

When an alleged victim of sexual assault was under the influence of alcohol, sex crimes attorneys want to prove they were capable of making reasonable judgments and thus that they were not too drunk to consent. These are difficult cases, because there is no objective way to determine how drunk is too drunk for consent. People are arrested for a DWI when their blood alcohol content is .08 or above. In a rape case involving alcohol, every case is different, and the answer to how drunk is too drunk is, “It depends.”

Proving Consent When the Alleged Victim Was Drunk in Missouri

Proving an alleged victim consented to sex can be fairly simple. Other times, like when a person is passed out during the sexual act, proving consent can be very difficult. Here are two examples:

  1. An alleged victim might have been drunk, but they were coherent and still interacting with their friends at a party. They might not have had complete use of their mental faculties, though. The next day, they wake up and think they were really drunk, and they do not remember consenting to sex. They begin the process of putting their alleged perpetrator behind bars. However, this is not a simple case. Prosecutors will need to prove they were too drunk for consent, and our sex crimes team will defend the alleged perpetrator with the belief a not guilty verdict is possible.   
  2. In another case, an alleged victim is drinking heavily. Although their friends are telling them to slow down, they keep drinking. Eventually, they vomit and pass out. Realizing they had sex while incoherent, they contact police and file a rape charge. A defense case will be more difficult here because the alleged victim’s friends are witnesses and Missouri law states that people who are incapacitated cannot give consent.   

No matter the circumstances, we represent individuals accused of sex crimes with expertise, dignity, and optimism. 

How to Know if Someone is Too Drunk to Consent

When investigating what really happened the night of an alleged rape, we ask a series of questions, including “Were both parties drunk?” Part of the point of this is to learn whether the alleged victim was indeed incapacitated. For example:

  • Were they unaware of the surroundings, either temporarily or permanently? Did they know what was going on around them or had they blacked out?
  • Was the alleged victim able to communicate to give consent? The communication could be physical or verbal.
  • Did they have full control of their physical movements or were they stumbling while trying to walk?
  • Were they vomiting or did they have other physical symptoms?

Strategies Used by Sex Crimes Attorneys in Jefferson City, MO 

After listening to our client’s explanation of what happened, we launch an investigation to best represent them throughout the legal process. The prosecution will need to prove beyond a reasonable doubt that the sex crime occurred. There are a number of extenuating circumstances which could cast doubt on this claim, or invalidate some of the so-called evidence. For example, we would want to know if there are any: 

  • Inconsistencies in the alleged victim’s story; 
  • Evidence, such as eyewitness testimony, that the sex was in fact consensual; 
  • Procedural errors that might have introduced bias into the case;  
  • Evidence gathered by law enforcement illegally; and
  • Ulterior motives the accuser might have for filing charges.

We look for the best way to secure a not-guilty verdict for our client, then represent the defendant at court hearings and trial. We also negotiate with the prosecutors and judges to have charges dismissed or reduced. 

Universities Warn About Sex Without Consent

Colleges and universities near Jefferson City, MO, address the question “How drunk is too drunk to consent” in their policies enforcing Title IX the U.S. Education Amendments of 1972. Title IX “prohibits discrimination on the basis of sex/gender  in education programs receiving or benefiting from federal financial assistance.” According to Title IX, schools must protect students from gender-based violence and harassment, including rape. 

Regarding consent, the University of Missouri System states in its Title IX FAQs: “Sexual contact with someone who was known to be or reasonably should have been known to be incapacitated is a violation of policy.” In plain English, someone can’t give consent if they are incapacitated, and sexual contact with someone who has not given consent is a violation of university policy. 

The university spells out what it means to be incapacitated:

  • Incapacitation is when a person is in a state or condition in which they cannot make rational decisions or give consent.
  • Incapacitation can occur from a temporary or permanent physical or mental condition impairing their thinking.
  • Drugs, alcohol, sleep, unconsciousness, or illness all have the potential to incapacitate a person.

The university’s Title IX office investigates violations of its policies while law enforcement determines whether to pursue criminal charges. A student can be expelled if the university determines he or she violated its Title IX policies. Plus they face prison time or probation if convicted in the court systems. 

Sex Crimes Attorneys in Jefferson City, MO

Your choice of an attorney affects whether you go free, get probation, or do time in prison. Kirsch and Kirsch specializes in criminal defense including sex crimes. Based in Jefferson City, MO, we know the judges and attorneys in our area and the best ways to keep you out of prison.   

Do not drag your feet if you are accused of rape. Call a sex crimes attorney right away to put yourself in the best position to stay out of prison.

Law enforcement might approach you to answer questions before making an arrest. If this happens, contact Kirsch and Kirsch immediately.