to me its obvious if the girl is passed out she is non consenting but if the girl is drunk or tipsy and she jumps on you or consents verbally is it considered rape? do people have to be sober to legally consent?
Divorce / Separation Lawyer
There is no standard. The danger is that a person remorseful for what she agreed to do (or he agreed to do in this inclusive age) can claim after the fact that she or he was assaulted against her or his will.
If you are concerned enough about it to post here on this site ... don't do it. Respect the women you are with and exercise caution. In other words, don't do anything, ever, that could be construed as taking advantage of a girl whose capacity is diminished by drinking.
To my knowledge these case has a dangerous potential to be charged.
For instance, ONCE that female has second thoughts post coitum about an overt or implied consent by pondering about it, then that female may conclude (with little help from her confidants, perhaps) by stating later on that SHE WAS NOT in a lucid conscious state on mind to give a proper consent to a consensual sexual activity with her suitor.
That is always a danger of such drunk frolicking.
If charged, however, retain a competent criminal counsel in Ohio AT ONCE and do not offer any explanations, admissions, clarifications at any time as they may and will be used against your legal interests as unprivileged.
DISCLAIMER The answer given above by the lawyer serves for educational purposes only and provides general information and a basic understanding of the applicable law. Take notice that the answer above does not create an attorney-client relationship as this website is not intended to provide anyone a specific legal advice. Anyone using the site expressly consents that there is no attorney client privilege between any person and any attorney responding. Further take notice that the site should not be used as a crude substitute for any professional and competent legal advice by a licensed professional attorney in the applicable jurisdiction. The attorney above attempted to provide competent professional opinion, however, the law and its applications may change frequently and vary greatly from other U.S. jurisdictions and locales. Therefore, any information and opinions stated above are general in nature, and may not apply to specific factual or legal circumstances related to one's current legal issues. Contact an experienced lawyer admitted to practice in your State under an attorney-client privilege to further receive a comprehensive legal before making an educated decision about your particular legal issue. If you have further inquiries you may contact: Attorney Alexander Ivakhnenko 1021 West Adams, 102, Chicago, Illinois 60607 773-562-8602 http://alexanderivakhnenko.com
One doesn't have to be sober to legally consent. My colleagues are right that sex cases offer difficult challenges, especially if one party tries to bring charges and only she and you know what really happened. Be careful.
Disclaimer: No attorney client privilege is established by receiving an answer to your question on Avvo. This answer is provided for informational purposes only. If you have further questions, please do not hesitate to visit my Avvo profile or website -- www.AfterTheTrial.com -- to set up an appointment to talk more about your issue. As required by Rule 7.2(e), Alabama Rules of Professional Conduct, no representation is made that the quality of the legal services to be performed is greater than the quality of legal services performed by other lawyers.
DUI / DWI Attorney
There are a couple of things you should be concerned about. First you should be aware of the female’s age. Just because a "girl" seems willing doesn't mean she is of age to consent and that should be a sober conversation you should be having if you don't know this girl. Consent cannot be given if she is under the age of consent.
Second, you should be very cautious about every having sexual relations with an intoxicated person. You run the risk that they may not remember what happened and if they don't remember having consented they may jump to the conclusion that they did not consent and allege that it was rape.
Also alcohol lowers a person’s inhibitions and once they sober up, regret may cause them to deny that consent was given and allege rape. When it is her work against yours, the state will often file charges and let a jury sort out whose telling the truth.
The safest course of action of course would be to avoid putting yourself in that situation.
DUI / DWI Attorney
You would be playing with fire and would likely get burned if you engage in such conduct with a drunk girl.
Unless prison time, the sex offender registry, fines, and lost employment opportunities sounds good to you, I suggest you stay away from the drunk girls.
Even if you aren't convicted, a rape accusation will cost you thousands of dollars in attorney's fees and will still horribly tarnish your reputation.
If you had a relationship with a drunk girl, do not post anything about it online and do not talk about it with anyone other than your attorney. And get an attorney quickly.
No attorney-client relationship is established via AVVO.com. The material posted by Kyle J. Bristow, Esq., is for educational purposes for prospective clients only and people should not make legal decisions based on it. You are advised not to take, or refrain from taking, any action based on what Mr. Bristow has stated on this website.
Criminal Defense Attorney
Potentially, yes. It can also be sexual battery. Here's some Ohio law on point.
R.C. 2907.03 Sexual battery.
(A) No person shall engage in sexual conduct with another, not the spouse of the offender, when any of the following apply:
(2) The offender knows that the other person's ability to appraise the nature of or control the other person's own conduct is substantially impaired.
R.C. 2907.02 Rape.
(1) No person shall engage in sexual conduct with another who is not the spouse of the offender or who is the spouse of the offender but is living separate and apart from the offender, when any of the following applies:
(a) For the purpose of preventing resistance, the offender substantially impairs the other person's judgment or control by administering any drug, intoxicant, or controlled substance to the other person surreptitiously or by force, threat of force, or deception.
(c) The other person's ability to resist or consent is substantially impaired because of a mental or physical condition or because of advanced age, and 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 or because of advanced age.
People don't have to be completely sober to consent. However, assuming this girl has passed the legal age of consent, she needs to be in control of her faculties, aware of her surroundings and what she's doing to provide valid consent, whether verbally or implicitly indicated. If she is intoxicated enough so that none of those requirements are fulfilled, you have a good recipe for a rape indictment when she later regrets what she's done, or would not have done if she were sober at the time.
I agree with Ms. Durflinger that the age of the young woman in question is an issue in itself. If the young woman were under the legal age of consent this would likely pose an additional hurdle in this matter. It is not clear to me if charges have been pressed in this matter, but I would not delay in securing an attorney should charges be filed.