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What Is Rape by Intoxication?

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By Deanne Katz, Esq. on March 07, 2013 11:53 AM

Rape is a crime that most people have at least some understanding of, but do you know what rape by intoxication is?

A Canadian tourist has been charged with rape by intoxication in California, after he allegedly had sex with an intoxicated woman in San Diego last year. Nelson Drake, 39, pleaded not guilty on Tuesday; if convicted, he could face up to eight years in prison, the San Diego Union-Tribune reports.

So what are the elements of the crime? It's pretty straightforward if you understand the definition of rape itself.

Legal Definitions

Rape is defined as non-consensual sexual intercourse that is committed by physical force, threat of injury, or other duress. That means any non-consensual sex qualifies. We often think of non-consensual as meaning that someone said "no," but that isn't really accurate.

Non-consensual means there wasn't consent -- in other words, that the victim did not say "yes." This can include situations in which the victim struggled, said "no," or tried to get away. But it can also include situations in which the victim was unable to say no.

Someone who is drunk or otherwise intoxicated often can't say "no," even if she doesn't want to have sex. It might be that she can't communicate or that she passed out and is unconscious.

If the victim can't consent, the person who forced intercourse can be charged with rape. Rape by intoxication refers to a circumstance in which the victim was under the influence.

Adult Responsibilities

As an adult making decisions about sex, it's your responsibility to make sure that any sexual advances that you make are welcome.

The easiest way to determine that is just to ask, "Is this OK?" Under the law, a lack of response is the same thing as a "no."

That also means it's your responsibility to assess whether the person you're with is actually able to give consent. If she's too intoxicated to know what's going on, there probably isn't consent.

That's an important distinction to know and one that isn't talked about often. But "I didn't know" or "I thought she was OK with it even though she was drunk" generally won't fly in court.

It also won't endear you to a jury at all.

Getting consent is important. Always ask before you act.

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