Can You Be Charged With Rape if Both People Are Drunk?

Intoxication can raise complicated legal questions, especially in cases involving consent.

A common question we hear as criminal defense attorneys is: can you be charged with rape if both people are drunk? The short answer is yes – the fact that both parties were intoxicated, in itself, is not a legal defense to sexual assault charges in Colorado.

However, the full answer is more nuanced. Whether a sexual encounter between two drunk people could result in criminal liability depends on the specific circumstances and if there was legally valid consent. Below, we break down the relevant statutes and explain how intoxication impacts the issue of consent in sexual assault cases.

Colorado’s Sexual Assault Laws & Definition of Consent

Colorado’s sexual assault law, codified at § 18-3-402, C.R.S., prohibits knowingly inflicting sexual intrusion or penetration on a victim if:

• It’s done by force, threat, or other means that make resistance impossible
• The victim is incapable of understanding the nature of their conduct
• The victim mistakenly believes the defendant is their spouse
• The victim is in legal custody and the defendant has supervisory authority
• The victim is under 15 and the defendant is 4+ years older
• The defendant uses their role in providing medical treatment to engage in sexual activity

The statute does not specifically mention intoxication. This is because in Colorado, like most states, sexual assault is considered a general intent crime. A defendant can be convicted even without intending the prohibited result as long as they voluntarily committed the sexual act.

Colorado law defines consent in § 18-3-401(1.5), C.R.S. as “cooperation in act or attitude pursuant to an exercise of free will and with knowledge of the nature of the act.” Importantly, a prior or current dating relationship does not, by itself, constitute consent.

The law outlines several scenarios where consent is automatically invalid, including if the victim is:

• Physically helpless and the defendant knows the victim cannot consent
• Impaired by drugs or alcohol to the point of being unable to appraise the nature of the conduct, and the defendant is aware of this impairment
• Under the legal age of consent (17 in Colorado)

How Does Intoxication Impact Consent?

The key question in drunk sex cases is whether there was knowing, voluntary consent by both parties. Contrary to popular belief, there is no set blood alcohol content (BAC) level at which consent becomes legally impossible.

Instead, the analysis focuses on whether the alleged victim had the mental capacity to understand and agree to the sexual activity, given their level of intoxication. The law applies the same standard to the defendant – voluntary intoxication is not a defense if the accused was still capable of comprehending their actions.

Theoretically, two equally drunk people could have consensual sex, as long as they both possessed the capacity to appraise the nature of the act and voluntarily agreed. But in practice, it’s very risky behavior from a legal standpoint. If there are any doubts about the presence of consent or either party’s ability to give it, a sexual assault charge could result.

Factors Suggesting Incapacity to Consent

Since there’s no bright line rule on intoxication and consent, courts evaluate the totality of the circumstances to determine if a sexual assault occurred. Evidence that may indicate a lack of capacity to consent includes:

• Slurred speech, stumbling, or inability to stand/walk on one’s own
• Vomiting, passing out, or fading in and out of consciousness
• Expressing confusion about what’s happening
• Not remembering the encounter the next day
• Statements of discomfort or requests to stop during the encounter

On the flip side, factors suggesting that an intoxicated person likely could still consent may include:

• Engaging in complex physical tasks like unclothing, unlocking doors, etc.
• Holding a coherent conversation or exchanging text messages near the time of the incident
• Interacting normally with others without appearing overly inebriated
• Making statements clearly expressing agreement to the activity
• Discussing the encounter or making future plans with the other party afterwards

Many cases involve conflicting evidence and fall into a gray area between obvious incapacitation and unquestionably sober consent. The fact-specific nature of this issue is why sexual assault allegations arising out of drunk encounters are so legally complex.

Severe Penalties for Sexual Assault Convictions in Colorado

Sexual assault is a serious felony offense in Colorado that carries severe criminal penalties. Most charges under § 18-3-402, C.R.S. are class 4 felonies, punishable by:

• 2-6 years in prison, and up to 12 years for extraordinary aggravating factors
• Mandatory 3 years of parole
• Fines of $2,000-$500,000
• Sex offender registration requirements

More egregious sexual assaults can be charged as class 2 or 3 felonies with significantly lengthier prison sentences, especially if the victim suffers serious injuries or was physically helpless.

Aside from potential incarceration, a rape conviction has devastating collateral consequences. Becoming a registered sex offender makes it extremely difficult to find employment, housing, and educational opportunities. It also carries immense social stigma.

Accused of Rape After Drunk Sex? What To Do Next

If you had sex while intoxicated and are now being accused of sexual assault, the single most critical step you can take is to remain silent and contact a skilled criminal defense attorney immediately.

Do not discuss what happened with police, friends, or anyone else until you have legal representation. Even if you believed the encounter was consensual, any statements you make can be misconstrued and used as evidence of guilt. Politely invoke your right to counsel and say nothing further about the incident.

We’ve seen far too many lives destroyed by sexual assault allegations that may have been defensible with the right legal strategy. As former prosecutors, we know how to find weaknesses in the government’s case and pursue every available option, from consulting experts to uncovering exculpatory evidence.

Get Help From an Experienced Colorado Sex Crimes Attorney Now

Being accused of rape does not make you a criminal, nor does it have to ruin your life. The prosecution bears a high burden of proof and there are many potential defenses to sexual assault charges, even when alcohol was involved. But the longer you wait to get legal help, the harder it becomes to build an effective defense.

If you’ve been arrested or are under investigation for a sex crime in Colorado, you need an aggressive criminal defense lawyer fighting to protect your rights and future. Don’t face these serious allegations alone.

At Dawson Law Office, our sex crime lawyers have decades of experience handling complex sexual assault cases. We’ve obtained dismissals, acquittals, and favorable resolutions for clients throughout the state. We understand the stress you’re under and are ready to provide the skilled representation you need.

For a free and confidential consultation, contact us today. We’ll review your unique situation, explain your options, and start crafting your personalized defense strategy. Call now to speak with a knowledgeable sex crimes lawyer about your case. The sooner you reach out, the sooner we can start fighting for you.