The Conundrum of Voluntary Intoxication and Sex

78 Pages Posted: 26 Sep 2016 Last revised: 2 Jul 2017

Date Written: September 24, 2016


Research shows that a significant number of sexual assault occurs after victims consumed an excessive amount of intoxicants, rendering them substantially impaired and incapable of opposing non-consensual sexual acts. These assaults occur in various social and professional settings, including high schools, universities, the workplace, the military, bars, clubs, public streets and private homes.

Existing sexual assault statutes mostly criminalize sexual acts with involuntary intoxicated people, namely when the defendant administered the intoxicants to the victim. Most of them, however, do not directly prohibit sexual intercourse with voluntarily intoxicated victims whose intoxication was self-inflicted. While general prohibitions against sexual intercourse with physically and mentally incapacitated individuals may be used to prosecute sexual assaults of intoxicated victims, they offer only an incomplete solution to the problem and are ill suited to capture the distinct features of these cases.

This Article aims to draw the legal boundary between sex crimes and consensual albeit drunken and regrettable sexual encounters. It makes several contributions to the contentious societal and legal debate over the circumstances that may justify holding a perpetrator criminally responsible for sexually assaulting a voluntary intoxicated victim. First, it argues that the criminal law’s treatment of sexual assault of intoxicated victims should not depend on how the victim’s impairment came about, and should equally protect victims of both voluntarily and involuntary intoxication. Second, the Article demonstrates that since the existing incapacity to express consent standard is vague and ambiguous, its application may result in inequitable resolutions for both victims and defendants. Third, the Article proposes a statute that directly prohibits sexual acts with victims who were unable to refuse non-consensual sexual acts due to their intoxication, whether voluntary or involuntary. The statute replaces the victim-oriented capacity to consent standard with a perpetrator-oriented inquiry that aims at identifying sexual predators by focusing on the circumstances that demonstrate a defendant’s culpable conduct and morally blameworthy state of mind. By targeting only cases that warrant criminal sanction, the proposed framework strikes a balance between defendants’ right not to be subject to criminal sanctions for conduct that does not demonstrate culpability and victims’ right to remain free from sexual violation by imposition of non-consensual sex.

Keywords: Criminal Law, Criminal Justice System, Rape Law, Intoxication

Suggested Citation

Buchhandler-Raphael, Michal, The Conundrum of Voluntary Intoxication and Sex (September 24, 2016). 82 Brooklyn Law Review 1031 (2017); Washington & Lee Legal Studies Paper No. 2016-16. Available at SSRN:

Michal Buchhandler-Raphael (Contact Author)

Washington and Lee University School of Law ( email )

Lexington, VA 24450
United States
(540) 458-8510 (Phone)

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