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Is it Rape if Both Of Us Were Drunk?

You wake up one morning in a strange bed in a strange home next to someone you kind of recognize. She wakes up and begins to panic. You had sex the night before. You vaguely remember but were so drunk last night that you’re having a hard time putting all of the pieces together. She immediately accuses you of raping her. “I was drunk, how could you have taken advantage of me like that?!” You begin to panic because you were both drunk last night and you weren’t aware that she didn’t want to have sex. Maybe she even seemed really into the idea. What happens now? Can you be guilty of rape if both of you were drunk?

The short answer to the question is that yes, it can be. You can be guilty of rape even if you were both drunk at the time you had sex. However, few things in the law are concrete. An experienced Columbus rape defense attorney can use ambiguities in the law and facts and circumstances specific to your case to argue against allegations of rape.

Ohio Rape Laws

In Ohio, it is a Felony in the First Degree if you have sex with another person who you know to be intoxicated and unable to resist or consent to sexual advances and activity. Consent does not have to be affirmative or verbalized. As the law is written it is enough that you should be able to infer from conduct, language, or mental capacity that consent does or does not exist. If you engage in sexual activity with someone who is intoxicated you begin to walk a fine line.

However, there may be an ambiguity in Ohio’s rape law. Section 209.02 of the Ohio Revised Code states, “No person shall engage in sexual activity when…the offender knows or has reasonable cause to believe that the other person’s ability to resist or consent is substantially impaired because of a mental or physical condition.” (emphasis added). To be guilty of rape in Ohio you must know or have reasonable cause to believe that the other person cannot or does not want to have sex. If you were also drunk when you had sex it may be difficult to prove that you had this necessary knowledge. If you were too drunk to understand the woman’s state of mind, and/or if you blacked out and have no recollection of having sex…it is difficult to say how the prosecution could establish that you had the necessary knowledge to commit a rape. The fact that you were both drunk, however, may not be an effective defense in court without other information to support your claim.

Proving intoxication can be difficult. If you two were alone it becomes a “he-said, she-said” argument. If she waited hours or days to report the alleged rape it can be hard to determine who was drunk and how drunk they were. It can also be difficult to prove that there was sex at all unless the woman requests a rape kit, gets pregnant, or if witnesses were present. Witnesses can be helpful in painting a broader picture of the alleged rape. Those who saw you the night before can often offer testimony about how drunk you (both) seemed, how many drinks you (both) had, whether they saw any unwanted sexual advances, and other information that may be relevant.

There are many preconceived notions and ideas about rape, especially when drugs and alcohol are involved. Even though sexual assault and rape cases have gained national attention over the past few years (including the Steubenville, Ohio incident in 2011), many people still view accusations rape by intoxication as a type of “buyer’s remorse” or “regret.” If there is a lack of evidence to support claims of rape, jurors are inclined to “assume that the woman consented because she was intoxicated and simply regretted the encounter later.”

Is it rape if both parties are drunk? It can be. However, proving rape can be difficult, especially if there are no witnesses and both parties’ memories are fuzzy because they were drunk when they had sex. If you were drunk you may have lacked the ability to know or reasonably infer that she could not or did not consent to sex. Courts hearing cases like this must look to the facts and circumstances of each particular case and weigh all relevant evidence. If you were both drunk and you have been accused of rape, your own intoxication may prove to be a mitigating factor in the case.

If you have been accused of rape you should not hesitate to contact an experienced Columbus rape defense attorney. Rape is a serious charge, and a conviction has the potential to disrupt your the rest of your life. Contact Attorney Adam Burke and the team at Burke, Meis and Associates today to schedule your free consultation.

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