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Zoey_ JD
Zoey_ JD, JustAnswer Criminal Law Mentor
Category: Criminal Law
Satisfied Customers: 27126
Experience:  Admitted to NYS Criminal defense bar in 1989. Extensive arraignment, hearing, trial experience.
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If a man has sex with me when I am intoxicated, is it a form

Resolved Question:

If a man has sex with me when I am intoxicated, is it a form of rape/sexual abuse. in other words, am i able to consent to sexual relsions if I am legally intoxicated.

Does a man who knows that he is interested in only a one, or several night encounter with a woman and knows she wants a relationship with him committing a criminal offense?
Submitted: 6 years ago.
Category: Criminal Law
Expert:  Zoey_ JD replied 6 years ago.
Hi Jacustomer,

It depends. Just being over the legal limit would probably not be good enough, and whether you were capable of consenting to sex while intoxicated would be a question of fact for the jury to determine.

In NYS, if you're over the age of consent, you'd lack the ability to consent if you were:

"Mentally disabled" which, means that "a person suffers from a mental
disease or defect which renders him or her incapable of appraising the
nature of his or her conduct."

"Mentally incapacitated" (this is what applies to your situation) which means that "a person is rendered temporarily incapable of appraising or controlling his conduct owing to the influence of a narcotic or intoxicating substance administered to him without his consent, or to any other act committed upon him without
his consent.


"Physically helpless" which means that "a person is unconscious or for any
other reason is physically unable to communicate unwillingness to an
act." See NYPL 130.00 for how these matters are defined in the NYS rape statute.

So really, if the defense were to go to trial on this case and argue that you consented, they would try to show that you were sober enough to know what you were doing and were still capable of making a rational decision. The state would try to bring out evidence to show otherwise, and the jury would decide whether a rape was made out beyond a reasonable doubt after the close of all of the trial evidence.

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Customer: replied 6 years ago.


.Ok, but In some states, it not possible to give consent when legally intoxicated, correct? and if this were applied to sexual behavior - i.e., a man taking advantage of a woman who is intoxicted and wants a relationship with the man, then is that possibly a criminal offense or harrassment. Why should interpersonal conduct be protected in professional settings as opposed to everyday settings (sexual harrassment in the workplace reasoning applied to other sensitive and imprtant settings, such as dating and finding a suitable spouse). Many women are not gettting married in time to have children, they are also experiencing difficulties with fertility problems that can be casued by sexually tranmistted diseases. Sometimes it seems as if there is too much focus on HIV AIDS and the rights of same sex couples. While these problems are compelling because of the severity of the illness and the extent of the discrimination, one can argue that we are not focusing on more moe commonplace problems, ones that effect a wider population of people. Unmarried and childless is not far from life shortening chronic illness and diffculties fitting into a conservative and often biased society. Hopefully as more same sex oriented people live more publically, then the heterosexual unmarried individuals can be seen for what they are: sytematically passed over and not able to bring children into the world or live a life in a loving sexual relationship.


Which leads me to the second question: Does a man who knows that he is interested in only a one, or several night encounter with a woman and knows she wants a relationship with him committing a criminal offense or emotional abuse?


I don't think either of my questions are really similar to sexual assault - I think maybe emotional abuse. what consitiutes emotional abuse and when can legal action be taken?

Expert:  Zoey_ JD replied 6 years ago.

Each state has its own definitions and its own statutes. So yes, in some states in states there would potentially be a difference in my answer. However the place where the crime occurred is the law that gets applied. In NYS -- which is what state you said said was related to this question -- it is not whether you were intoxicated but HOW intoxicated you were that makes the difference. Many people can function very well with BACs way over the legal limit. Others can get drunk practically from lifting the glass to their noses and smelling the stuff.

In NYS the defense would try to show consent by bringing out everything the complainant did that would indicate that she was in full possession of her mental faculties and could assess what she she was doing and control her actions. The other side would show otherwise. And as I said, the jury would determine the issue of consent.

NYS, like most (but not all states) does not have a civil or criminal cause of action for what they call "heart balm cases." A guy tells you he loves you but all he wants is a short term sexual relationship? That's a heartbreaker sometimes, but it's not a criminal or civil matter in this state. People lie to each other all the time in their human relationships, and while it hurts, and it may be ethically and morally wrong, it does not constitute a crime. If we faced an arrest whenever we made someone else unhappy by telling him something that wasn't the truth, we'd all have very long criminal records.

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Customer: replied 6 years ago.

if someone lies to obtain something of value - and sexual contact has value, then is that closer to being considered a crime than just being an unethical person. what if the consequnces were disease, impaired fertility, damaged reputation and the associated emotional suffering? antibiotics and reliable forms of birth control should not change patterns of dating as much as it has. Just think about how our parents generation met and got married, why can't these patterns be reestablished with a 'don't drink and have sex law'.


if there is no crime involved with telling lies and misrepresenting intentions, are there places where consistantly ethical behavior is rewarded and unethical activities prevent someone from being in a position of power/influence? are people with political abilities necessariy those with difficulties with sexual conduct or does media make sexual misconduct more possible.


i had better luck dating initiating a relationship with a man when there was no alcohol involved and/or the man just gave me a kiss good night at the end of the evening.



Expert:  Zoey_ JD replied 6 years ago.

I did not say that it was never a crime to lie and to misrepresent. There's a truth in advertising law for example, and sellers who breach it can be held accountable. You can be prosecuted for making a false police report or a prank emergency 911 call. I could give you many more examples along those lines. What I said was that it's just not a crime to sweettalk someone into sex. It's been going on since Adam and Eve, and the law isn't going to prosecute it.

If you consent to sex but were not told that the person has a sexually transmissible disease, for example, you would certainly have a remedy under the law. But law is not ethics, despite that there may be some overlap. And many of us would not welcome the government regulating our private life. In fact, we presently have a fundamental right to privacy.

We also live in a democracy. If we are interested and do our homework, we can vote to put ethical people in office, and keep the shadier ones out. In theory anyway, as none of us is without fault, and it's well known that power can corrupt by definition. But we're getting into philosophy and not law and I don't pretend to know that nearly as well.

I'll say, however, that my friendships with the opposite sex have lasted longer than my romantic relationships. It's a lot easier to control our heads when our hearts and bodies aren't interested. I guess that's why love can hurt so much.

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