The following is one of the most common types of cases our firm defends in Ohio. What happens when two intoxicated adults engage in sex and one of them does not recall ever giving consent?
This is different than rape (force or threat force to overcome the free will of the other person). This type of case is called Sexual Battery in Ohio. The theory behind the criminal code is that consent cannot be obtained if the other is substantially impaired by alcohol, drugs or even sleep.
If the evidence in a prosecution shows that the alleged victim was in a state of deep sleep or drunkenness and did not consent to intercourse that evidence, if believed by all 12 members of a jury, is sufficient to convict.
Most of the time it is uncontroverted that the alleged victim was intoxicated. The question is whether or not that intoxication rises to the level were the alleged victim’s “ability to appraise and control [his/her]conduct was substantially impaired and that [he/she] submitted to sexual conduct because [he/she]was unaware that any such conduct occurred.
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Commonly, the other person recalls events earlier in the evening but then claims to have no other memories of the night of the incident. If there is compelling evidence that the defendant was aware of the alleged victim’s status (drunk to the point of incapacitation) then it is going to be a very challenging case for the accused.
Defending these cases requires a very careful piece by piece analysis of all the “choices” the alleged victim made that conveyed consent (by words and/or actions).
Also, the credibility of both the defendant and the alleged victim is exceptionally important to a jury when deciding these types of crimes.In Ohio, sexual battery carries a prison term up to 5 years and mandatory lifetime registration as a convicted sex offender.
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