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Is having sex with someone who is drunk considered rape?

San Diego, CA |

I wanted to know if I have sex with someone who is drunk or under the influence is that considered rape?

Attorney Answers 8

  1. Best answer

    Having sex with a person who has consumed alcohol is not necessarily rape, many if not most couples have sex for the first time under the influence of alcohol. The question, as others have pointed out, is whether the person had sufficient capacity to consent given her mental state. If not, than it is rape. It is also rape to have sex with an unconscious person for much the same reason, the unconscious person's mental state makes consent impossible. You claim in the comment section that, "She was very drunk. Not passed out, but probably didn't even know her real name." This comment seems to suggest that the person was not capable of consent and this may well meet the definition of rape by intoxication in California. California actually has a bad rape by intoxication statute (from my perspective and the perspective of the defendant): “rape is an act of sexual intercourse accomplished . . . [w]here a person is prevented from resisting by any intoxicating or anesthetic substance, or any controlled substance, and this condition was known, or reasonably should have been known by the accused.” In other words the provision prohibits sexual intercourse with a victim incapable of providing legal consent as a result of intoxication, regardless of whether actual consent was given. Basically all male college students are at great risk of being being accused of rape in California given that most sexual there (and elsewhere) involve great amounts of alcohol and drugs.
    Given the law in California, I recommend you (or whoever it is your talking about) hire an attorney asap before charges are filed. Will the DA bring a case? Possibly and hopefully not but I've seen rape by intoxication cases with little more than several empty beers cans and a roll in the hay. Good luck.

  2. No. Just because he or she is under the influence, by itself, does not elevate otherwise consensual sex to sexual assault.

    The information provided herein does not create an attorney-client relationship. The information provided is to suggerst some general principles and should not be relied upon for client decisions. Only upon the hiring of counsel can such advice be custom-tailored to the client's specific situation and needs.

  3. There have been some very widely-publicized California prosecutions for rape where the prosecution's theory of culpability was that the victim could not give consent because of the influence of drugs and/or alcohol. Such facts can be dangerous and prosecutors' take on such situations can vary widely. For example, the charging manuals of the 3 largest prosecution agencies in southern California are very different on this specific point, even as each purports to interpret and apply the same State laws.

    In most such circumstances, the prosector will look to additional factors for reaching a conclusion on the issue of consent, such as whether the victim was under the influence as a consequence of urging or actions by the potential defendant, victim's age relative to that of defendant, source of the alcohol or drugs, victim's mental capacity, surrounding conduct by the defendant, etc.

    But here's a sound bottom line: if you have a genuine concern about whether some local deputy DA would be willing to file rape charges against you, get a lawyer and get some specific advice ASAP. This is not a subject matter where there is any percentage in splitting hairs about definitions, nor is it an issue where the info you can get here will give you any real protection or confidence.

    No legal advice here. READ THIS BEFORE you contact me! My responses to questions on Avvo are never intended as legal advice and must not be relied upon as if they were legal advice. I give legal advice ONLY in the course of a formal attorney-client relationship. Exchange of information through Avvo's Questions forum does not establish an attorney-client relationship with me. That relationship is established only by joint execution of a written agreement for legal services. My law firm does not provide free consultations. Please do not call or write to me with a “few questions” that require me to analyze the specific facts of your history and your license application and prescribe for you how to get a State license. Send me an email to schedule a paid Consultation for that kind of information, direction, and assistance. My law firm presently accepts cases involving State and federal licenses and permits; discipline against State and federal licenses; and disciplinary and academic challenges to universities, colleges, boarding schools, and private schools. We take cases of wrongful termination or employment discrimination only if the claims involve peace officers, universities or colleges.

  4. To oversimplify an answer, the question is not how drunk a person is, but is the person capable of giving consent? That is the question. If the person is not capable of giving consent then you run the risk of being charged with rape. An experienced criminal defense attorney will know how to handle any of these facts and circumstances to your benefit.

    I will be happy to speak with you at no cost with a FREE phone consultation if you have a San Diego or California matter. Please call my office at 619-238-1905 or visit my website at

  5. Depends on how drunk they are/were. Keep your mouth closed to law enforcement and/or the complainant and their family and contact a locally experienced criminal defense attorney.

    Law Offices of David Shapiro 3555 4th Avenue San Diego, CA 92103 (619) 295-3555

  6. It can be considered rape if the person is so intoxicated that they cannot consent to the sexual activity. You should immediately contact a defense attorney for a free consultation and refrain from talking to anyone else about this situation since everything you say to anyone but an attorney can later be used against you. If you need your side of the story told, it's best to have your attorney do so on your behalf.

    Law Office of Andrew Limberg, APLC 380 S. Melrose Dr., #329 Vista, CA 92081 (760) 806-4381

  7. It could be if her ability to consent was vitiated by influence of alcohol ( or drugs or medication). If you think you are going to be accused do not talk to the police and use Avvo find a lawyer feature.

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