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Can Someone Drunk Consent to Sex?

Many people mix alcohol and sex. Maybe they need a drink to feel relaxed enough to have sex, or possibly they want an excuse for engaging in sexual activity in the first place. Whatever the reason, many of our clients face sexual assault charges when their partner is drunk.

A common question Houston criminal defense attorneys hear is, “Can a drunk person consent to sex?” Most people understand that consent is required to avoid a sexual assault charge. But the answer to this question is complicated.

What is Consent?

Under Texas Penal Code § 1.07(a)(11), consent is defined as “assent in fact,” which can be either express or implied. Essentially, express consent is verbally conveyed, such as, “Yes, I want to have sex.” Consent can be implied from the circumstances, such as someone taking off your clothes or other actions. Although consent doesn’t have to be spoken, it must be obvious or apparent.

Can a Drunk Person Consent?

The answer to this question is complicated. But let’s deal with an easy case. If your partner passes out drunk, then he or she cannot consent. An intoxicated person can’t speak (obviously) and they also can’t take actions which manifest implied consent. So if you have sex, you’re committing sexual assault.

It really doesn’t matter if you came to an agreement ahead of cracking open your first beer to have sex. The reality is that someone must consent throughout the entire encounter. Under Penal Code §22.011(b)(3), you do not have consent if your partner is unconscious.

Okay, but Can a Drunk Person Consent to Sex?

So we’ve dealt with the easy case. But what about other situations? Not everyone drinks to unconsciousness. The more likely situation is that you’ve had a few and then get frisky. You walk away in the morning from what you thought was a pleasant experience, but your partner tells a different story the morning after.

He or she (let’s say “she” for this example) claims that she didn’t really know what was happening. She was so drunk that everything was a blur. She says you pushed her to drink, and when she woke up in the morning her clothes were off and she realized she’d had sex. She claims she never would have consented to sex except for the beers she drank.

Prosecutors sometimes believe these stories. Their argument is that the victim was “too drunk” to know what was going on, even if she was not unconscious. In short, they argue she wasn’t capable of understanding what was happening, so she couldn’t consent. And that would make you guilty of sexual assault.

Get Legal Help

This is definitely a gray area. An attorney can make a big difference in this type of case. We would want to know more details about the encounter—what was said, what your partner did, how much you drank, and so forth. Based on what we hear, we might argue that your partner was drunk but could still consent. For assistance, contact Houston criminal defense attorney Tad Nelson today.