Imagine two people, both of whom are drunk or under the influence of drugs. One person accuses the other person of sexual assault. The accused does not believe he or she committed assault, or does not remember the events of the evening. In some cases, the accuser may not remember all the events of the evening, either.

If both parties were intoxicated or high, and both have different recollections (if any) about what occurred the night before, can one party be reasonably charged with sexual assault? In other words, is intoxication a defense to criminal charges of sexual assault, rape, or other sexual offenses?

The required intent for rape and sexual assault crimes

Generally, crimes are divided into general intent crimes and specific intent crimes. General intent crimes mean that the defendant acted willingly, even if he or she did not intend for the results that followed. Drunkenness/intoxication is generally not a defense to a crime of general intent.

Specific intent crimes are intentional acts where the defendant did intend the harmful consequences of his/her acts. Usually, the requirement for specific intent is written into the statute that defines the crime. Intoxication may be a defense to a crime of specific intent depending on the current case law in Maryland. Defendants who are acquitted of specific intent crimes may be found guilty for less serious general intent crimes.

Determining whether rape or sexual assault charges are specific intent crimes when both parties were intoxicated is challenging. Under Maryland law, rape in the second degree is defined as:

“Vaginal intercourse or a sexual act, with another:

  1. by force, or the threat of force, without the consent of the other;
  2. if the victim is a substantially cognitively impaired individual, a mentally incapacitated individual, or a physically helpless individual, and the person performing the act knows or reasonably should know that the victim is a substantially cognitively impaired individual, a mentally incapacitated individual, or a physically helpless individual; or
  3. if the victim is under the age of 14 years, and the person performing the act is at least 4 years older than the victim.”

If only one party was intoxicated at the time, then this could be a case of a specific intent crime, as alcohol and drugs can lead to substantial cognitive impairment. However, if the accused could not reasonably know the accuser was unable to make a sound decision because he or she was also cognitively impaired, then the lawyer may argue this was not a specific intent crime.

Therefore, the determination could hinge on the words “without the consent.”

Does voluntary intoxication imply consent?

In general, the starting point is to say “no.” A woman or man who is inebriated cannot give consent to sexual intercourse because he or she is, by virtue of the intoxication, unable to make a sound decision. Just because the person chose to get drunk or high does not mean that he or she has given consent for sexual relations of any kind.

However, the circumstances around the drinking, the location of the drinking, and the current case law dictate whether voluntary drunkenness could offer a viable defense against more serious criminal charges, and around issues of intent and consent.

At Carey Law Offices, we keep current with the latest court decisions. We understand if and when a defense applies, and what factors must be considered. We use the law to help our clients obtain dismissals or to have the charges reduced to lesser offenses. For help with any rape, sexual assault, or other sexual criminal charge, call our experienced Bowie and Crofton defense lawyers today. You can schedule an appointment by calling 301-464-2500 or filling out our contact form.