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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 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 someone be guilty of rape if both parties 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 Ohio 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, 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 may not be effective in court without other support for your claim.

Rape Laws in Ohio Continued

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. Unless a woman gets pregnant, it is difficult to prove that sex occurred without a rape kit or witnesses present. Witnesses can be helpful in painting a broader picture of the alleged rape. Those who saw you the night before can often offer relevant information. They may offer testimony about how drunk you both seemed, how many drinks you had, or any unwanted sexual advances.

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?

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. It is likely that a drunk person lacks the ability to reasonably infer that someone could/did not consent to sex. Courts hearing cases like this must look to the facts and circumstances of each particular case. They must weigh all relevant evidence. If both parties were drunk and you are accused of rape, your personal intoxication is a mitigating factor in court.

If you have been accused of rape you should not hesitate to contact an experienced Ohio 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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Burke, Meis & Associates


625 City Park Ave, Suite 200A
Columbus, Ohio 43206