Is it Rape if Both Parties Are Drunk?

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John Deer and Jane Doe meet in college. They start attending the same parties, playing the same games. While entranced in a game of beer pong, both become intoxicated. One thing leads to another and they end up having sex. Can one party claim rape if both were inebriated?

Ohio revised code 2907.02 states no person shall engage in sexual activity when,

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.

The law states that if an individual knows of the other person’s incapacitation and still conducts the sexual act, it is considered rape. However, the statute remains vague about if both parties are drunk. The details in each case varies, making it difficult to ascertain consent. Ohio does not have any legislation dictating affirmative consent, either. In cases such as John and Jane’s, the court must review the details carefully and make their decision.

Such issues arise most frequently on college campuses. The schools must abide by Title IX rules. However, they have the right to use their judgement when considering rape cases where both parties were drunk. With the government’s “It’s On Us” initiatives and new focus on rape cases on campus, colleges feel the pressure. To avoid scrutiny, many universities assign strict punishments, without fully understanding the situation.

At The Koffel Law Firm, we believe everyone deserves their due diligence in the court of law. Universities do not have the necessary tools or experience to fairly try accused students. If you or someone you know was accused of rape, it is imperative to seek legal counsel. Contact our Columbus sex crime attorneys today to schedule a consultation. We will review your case and inform you of your rights.

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