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.
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11 lawyers agree
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.
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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.
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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.
4 lawyers agree