Protecting the Party Girl: A New Approach for Evaluating Intoxicated Consent

Abstract

In this Article, Goodman endeavors to provide some guidance to courts and juries in evaluating whether there was valid consent to intercourse when alcohol has been consumed by one or both parties. In doing so, she attempts to address the more difficult cases involving scenarios that are closer to the line dividing consent from non-consent. Because of the varied effects alcohol has on perceptions, Goodman proposes a sliding-scale approach toward evaluating consent that would establish an appropriate level of explicit consent that varies with the number of drinks or level of intoxication of the parties. This sliding-scale approach suggests that the more alcohol that has been consumed, the more explicit manifestations of consent must be, although at some point, even explicit consent will not be adequate when the woman is intoxicated to the point of incapacity. In addition, this sliding scale would amend the application of many existing rape and sexual-assault statutes in several ways. First, explicit consent is not required under most existing statutes but would be required in some circumstances under this approach. More equivocal words or conduct will be permissible evidence of consent at the lower levels of alcohol consumption. Second, this approach would reduce the level of intoxication necessary to trigger a relaxation of the force and resistance requirement and provide protection not only for the severely intoxicated, but also for those at lower levels of intoxication who are unable to effectively resist due to alcohol consumption. Existing statutes omit the force and resistance requirements when the intoxication is severe, or when the intoxicant was administered by the defendant, but this standard would provide protection even when the intoxicant was voluntarily ingested. Finally, Goodman recommends that silence be inadequate to constitute consent when either party has consumed more than a de minimis amount of alcohol. Current standards use silence as evidence of consent in some cases. Incorporating this sliding-scale approach into jury instructions, as well as reported judicial decisions, would help to protect more women from the dangers of intoxication during intimate activities.

Keywords: alcohol, consent, intercourse, sex, intoxicated, incapacity, jury instructions, crime, criminal, victim, rape, sexual assault, explicit consent, defendant