Is it legal for a sober man to have sex with an intoxicated woman?

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Is it legal for a sober man to have sex with an intoxicated woman?

This girl got really drunk at a party, so her friends took her home. A sober boy texted her and asked if he could come over and she said yes. Once there he immediately took off her clothes, had sex with her, then left. The girl did not say no, however, she was very drunk and didn’t realize what was happening until it had already happened. The girl also did not say yes to having sex with the boy because he did not ask. After he left, the girl immediately called her friends who came over right away and stated

that she was still incredibly drunk. They got her dressed and got her to bed. I’m wondering if this encounter was okay seeing as she did not explicitly say no. It is also important to note that the girl and boy had known each other previously but the girl, while sober at a previous incident, said that she did not want to have sex with him. I’m just not sure if this latter incident was legal or not.

Asked on November 14, 2018 under Criminal Law, District of Columbia

Answers:

M.D., Member, California and New York Bar / FreeAdvice Contributing Attorney

Answered 2 years ago | Contributor

This encounter constitued rape. The woman in question could not give valid consent due to her extreme intoxication and unconsensual intercourse is rape. Further, consent is an ongoing process. So even if she had initially consented to engage in sexual activity, any subsequent request to stop would have needed to be respected.

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 2 years ago | Contributor

It was rape. If someone is in a condition, such as due to drunkenness, that she does not know what is going on or is not mentally competent to give informed consent, then it was nonconsensual sex, and nonconsensual sex is rape. This was a crime.


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