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Texas rape with drunk 18 year old and sober 14 year old?

Beeville, TX |

If a person is drunk and is either sleeping or passed out, and a willing 14 year old, who either wakes you up or brings you out of being passed out, starts having sex with you...who is 'raping' who...if you are that 'out of it', can you give consent for intercourse?

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Attorney answers 3


Voluntary intoxication is not a defense to rape or to unlawful sexual intercourse with a child under 17 in Texas. Being asleep and awakened by a 14 year old doesn't even pass the smile test. You need to hire a TX lawyer experienced in these matters if you have been or suspect you are about to be charged in this matter.


This is a complicated question. There is no defense based on age; for the three defense to apply, the adult would have to be less than three whole years older than the child. It is certainly possible to imagine a set of circumstances where an adult who became intoxicated, passed out, and awoke to find themselves having sex with a minor. However, it is going to be a tough sell to a prosecutor and a jury that the 14 year old initiated the sexual contact while the person was incapacitated; most people will think that the adult had at least something to do with starting this off. As Mr. Kaman indicated, voluntary intoxication (you chose to consume alcohol) is not a defense to a crime in the State of Texas, so that doesn't help you out either.

I would agree with my colleague and encourage you to speak to a local criminal defense attorney as soon as possible. Stop posting information about your case online; it could be used against you in an actual prosecution.


This question illustrates why it's better to talk to a creative lawyer who practices in the area where you might be accused, rather than someone giving cookie-cutter answers from (for example) California.

While voluntary intoxication is not itself a defense to criminal charges in Texas, every crime in Texas requires a voluntary act. The drunk 18-year-old may have a defense based on the sexual conduct being involuntary.

Hire a lawyer to advise you before talking to anyone else about this situation. Anything you say to anyone other than a lawyer will come back to bite you.

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