When Neither Party Is Sober Enough to Say Yes

Alcohol consumption may impact a person’s ability to consent to sexual actions by lowering inhibitions, increasing aggressive behavior, and affecting clear speech. With allegations of a sex crime, the lines of consent may be blurred if one or both parties have been drinking.

How Does Alcohol Affect Consent?

When alcohol is involved, the laws regarding sexual consent often get distorted. If allegations of sexual assault are made by one party, legal actions may be impacted by unclear determination of consent if one or both parties have been drinking prior to sexual relations. Common legal issues regarding alcohol and sexual consent include several important factors.

Does Alcohol Make Consent Impossible?

Although alcohol consumption does affect cognitive thinking and speech abilities, it doesn’t automatically mean that consent to sexual activity isn’t possible. Studies show that people consent to sexual relations all the time under the influence of alcohol. In many cases, people drink intentionally to lower their inhibitions and increase sexual pleasure.

Does Alcohol Make it More Difficult to Determine Consent?

Although alcohol affects everyone differently, it does have some type of effect on behavior. Because alcohol typically reduces inhibitions and increases aggression in most people, the lines of consent are often blurred. If there is any question about consensual relations, it’s best to avoid them completely to avoid potential allegations of sexual assault at a later time.

Do State Laws on Consent Vary?

State laws do not provide adequate legal ways to determine consent in sexual relations. Most states agree that a person who is passed out from drinking alcohol can’t consent, but beyond that the lines for consent are questionable. Many states have established levels of incapacity to determine when a person is too intoxicated to consent, but there are variables with each situation.

Can Parties be Liable for Sexual Assault?

Being under the influence of alcohol does not justify an excuse for one party to take advantage of the other. Being drunk is not a legal excuse for rape and sexual assault, which are legally defined by the law. If one party alleges sexual assault, police will investigate the incident. If both parties are intoxicated beyond consent, both parties can be found liable for sexual assault.

Sexual Assaults on College Campuses

Over the past decade, sexual assaults on college campuses across the country have risen by 50 percent. The reported number of sexual assault cases on college campuses equates to one in five female students being assaulted. Many such cases involve alcohol consumption and/or drugs. In 2015, The University of Minnesota reported two high-profile rape cases on campus. School records reveal that the school reported a 40 percent increase in sexual assaults on campus over a five-year period.

The Minnesota Coalition Against Sexual Assault has expressed major concerns about the rising number of sexual assaults occurring on Minnesota campuses. They urge all victims to come forward and make an official report when a sexual assault occurs. In 2016, President Obama established a special task force to address the problems of sexual assault on college campuses and seek viable solutions to prevent the problem. According to White House statistics:

  • One in five college women are victims of sexual assault
  • At least 92 percent of women who are victims of sexual assault know their perpetrator
  • Just 12 percent of female victims report sexual assault to law enforcement or school officials

Research shows that many women know their attackers and feel partly responsible when rape and sexual assault occurs. For those reasons, many women never report any type of sexual misconduct or sex crime to authorities, and never pursue any type of legal action against their perpetrator.

According to national statistics, at least 23 percent of female college students admit to some type of unwanted sexual contact during their college years. In addition. 26 percent of seniors say they have experienced a sexual assault while attending college. Statistics show that rape and sexual assaults happen on many college campuses, but incidences are often even higher at high-profile universities. Reports show the University of Michigan ranks 34th in the nation for sexual assaults, while Yale ranks 32nd, and Harvard ranks 29th.

Most colleges and universities do not want to expose problems with sexual violence on campus. Financial donors are hesitant to support schools with high sexual crime statistics, and national school rankings are lower when sexual crimes show up on college campus reports. In addition, parents are often more reluctant to send their children to schools where a high number of sex crimes occur on campus.

Max Keller has won countless jury trial cases involving misdemeanors and felonies, sex crimes, and DWI’s. He is a member of the Minnesota Society for Criminal Justice, which only allows the top 50 criminal defense attorneys in the state as members. Max is a frequent speaker at CLE’s and is often asked for advice by other defense attorneys across Minnesota.

Years of Experience: Approx. 20 years
Minnesota Registration Status: Active
Bar & Court Admissions: State of Minnesota Minnesota State Court Minnesota Federal Court 8th Circuit Federal Court of Appeals State of Maryland

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