Brooklyn Law Review


Research shows that a significant number of sexual assaults occur after victims have consumed an excessive amount of intoxicants, rendering them substantially impaired and incapable of opposing nonconsensual sexual acts. Existing sexual assault statutes mostly criminalize sexual acts with involuntarily intoxicated people, namely when the defendant administered the intoxicants to the victim. Most of these statutes, however, do not directly prohibit sexual intercourse with voluntarily intoxicated victims whose intoxication was self-inflicted. While general prohibitions against sexual intercourse with physically and mentally incapacitated individuals may be used to prosecute sexual assaults of intoxicated victims, they offer only an incomplete solution to the problem and are ill suited to capture the distinct features of these cases. This article aims to draw the legal boundary between sex crimes and consensual, albeit drunken and regrettable, sexual encounters. It makes several contributions to the contentious societal and legal debate over the circumstances that may justify holding a perpetrator criminally responsible for sexually assaulting a voluntarily intoxicated victim. First, it argues that the criminal law’s treatment of sexual assault of intoxicated victims should not depend on how the victim’s impairment came about, and should equally protect victims of both voluntary and involuntary intoxication. Second, the article demonstrates that since the existing incapacity to express consent standard is vague and ambiguous, its application may result in inequitable resolutions for both victims and defendants. Third, the article proposes a statute that directly prohibits sexual acts with victims who were unable to refuse nonconsensual sexual acts due to their intoxication, whether voluntary or involuntary. The statute replaces the victim-oriented capacity to consent standard with a perpetrator-oriented inquiry that aims at identifying sexual predators by focusing on the circumstances that demonstrate a defendant’s culpable conduct and morally blameworthy state of mind. By targeting only cases that warrant criminal sanction, the proposed framework strikes a balance between defendants’ right not to be subject to criminal sanctions for conduct that does not demonstrate culpability and victims’ right to remain free from sexual violation by imposition of nonconsensual sex.