If you face a claim or a charge of sexual assault in Texas, you may wonder how alcohol can affect what’s known as “consent” in such cases. The discussion about alcohol and consent has become hotly debated in recent weeks due to the Judge Kavanaugh hearings and ongoing #MeToo movement.
First, you should know what “consent” means under Texas law when it comes to cases of sexual assault or rape. Under Texas Penal Code Chapter 1, consent means “assent” (or agreement) in fact, whether or not the consent is “expressed” (clearly stated) or “apparent” (strongly suggested).
In other words, when it comes to sexual contact, each partner must consent, or agree to it. That consent doesn’t have to be spoken, but it must be clearly indicated. Such consent is needed for a sex act to be legal, whether agreement is firmly stated verbally or indicated by actions.
When such consent is given by persons 17 and older, no law is broken. But if one person in a sexual act denies consent or is unable to give consent, the other person is breaking the law by acting anyway.
Now, you should understand how alcohol and other factors can affect consent when you’re facing a sexual assault charge.
In Texas, an individual is considered unable to give consent to sex if any of the following statements are true:
- They’re mentally incapable of understanding the act.
- They’ve been given a mind-altering substance, as with so-called “date rape” drugs such as GHB or Rohypnol.
- They’re asleep or unconscious, which can mean drunk to the point of passing out.
- They’re under the age of 17.
But when both parties are conscious and of age, does alcohol affect consent?
The short answer: Yes, it can.
The longer answer: Alcohol can swing a case either way. Prosecutors may argue that a person was too drunk to knowingly give consent to sex. Defense lawyers may argue that a person willingly became intoxicated with the understanding that it could lead to consensual sex.
On the other hand, if a person is intoxicated to the point of unconsciousness, sex with that person is illegal, even if consent was given before they passed out.
Since consent is vital in proving your innocence of a sexual assault or rape claim, your sex crime defense lawyer will gather evidence to indicate that consent was provided. With sufficient evidence, your charge may be reduced or even dropped entirely.
But if the other person was unable to give consent legally, your charge could stand.
An inability to give consent to sexual activity can be a matter of age, not just intoxication. By Texas law, no one under 17 years old is legally able to give consent to sex. Exceptions would be if a person 14 to 16 was married to their sex partner, or if the older person was no more than three years older than the younger partner, who still must be at least 14. This is known as Romeo and Juliet law.
But for persons 17 and older — 17 being the legal age of consent in Texas — it may be alcohol that’s a factor in determining if consent was truly given.
As you can see, having alcohol in the mix doesn’t necessarily protect you from a charge of sexual assault. But it can play a part.
Learn more by contacting the Neal Davis Law Firm for a legal review of your sex assault case in Houston, Harris County, Fort Bend County or Montgomery County.
Sexual assaults have severe punishments in Texas, with possible fines of many thousands of dollars and prison sentences of up to 99 years. So don’t delay.