Will my friend be accused of rape if both of them were under the influence?

Question

My friend is accused of having sex with a woman without consent. Both were drunk and can't remember any details. All she knows is that she woke up and her jeans were down. She had a test done and it did show semen. It was not violent or anything and she was not injured. They were drinking together all night. He can't remember anything. He hasn't been in trouble before and is a pretty good guy. I was wondering what the punishment would be for him if the DNA came back positive.

Kevin O'Grady · Answer

If the woman is considering alleging rape it is best to hire an attorney right now to start to defend yourself.

Eric Lampel · Answer

This is a defensible case given the info you provided.

Michael Tumposky · Answer

If she pursues this case, he would face a substantial prison sentence.  He should hire a lawyer immediately.

Steven D. Dunnings · Answer

Yes.

Andrew Roberts · Answer

Yes- it is possible. The woman did not consent.

Jules N. Fiani · Answer

No, if it was consenual. Yes, if it was not consenual.

Cynthia Henley · Answer

Possibly.  Consent must be "effective" and there are cases which say if someone is super intoxicated then consent may not be effective.  He should have a lawyer representing - b should not be talking to police on his own.

Jacob P. Sartz · Answer

Your friend really needs to get a lawyer.He could be charged with a criminal offense; a very serious criminal offense called criminal sexual conduct, first degree (i.e., rape). However, whether he will be convicted is a different question. The burden of proof is lower for filing the initial charges then to obtain a conviction. What he says and does now will be a big issue and can be potentially used against him if they file.  Your friend needs a lawyer, now. Most attorneys provide free initial consultations. If he cannot afford to retain a lawyer, the court will appoint him a lawyer if he is charged with a criminal offense.

Jared Austin · Answer

Rape charges, especially when both parties are drunk, are very difficult to prove. Without a rape kit analysis coming back supporting a rape claim and if neither party can remember the details of the encounter, it would be quite difficult to prove rape beyond a reasonable doubt. If charged, you should immediately seek out experienced legal counsel as the consequences are very serious.

Michael Maltby · Answer

Having a DNA test coming back positive is still a long way from a conviction for rape. I doubt if your friend will even be charged based on the facts that were provided. You would have to have some facts to demonstrate lack of consent.

Michael J. Breczinski · Answer

If both of them were drunk and can't remember then the issue could be that she raped him. He could not consent either. So who should really be charged with rape, neither were capable of giving consent.

Susan Correia-Champa · Answer

If the alleged victim cannot remember any details then it will be difficult to prove beyond a reasonable doubt that she was raped.  That being said, it is important for your friend to seek legal advise, the fact that he was drunk is not a defense.

Kathryn Hudson · Answer

From the details you have given it sounds as though your friend has grounds for a defense. Generally intoxication is not a defense to most crimes, and a person that is intoxicated has diminished capacity to give consent so a rape charge can be made "if" the woman can show some evidence that the sexual encounter was not consensual. If they were both intoxicated and she cannot remember what happened, and there is no other evidence of force, she's going to have a hard time claiming it was rape. This is a very serious charge, however, your friend needs to retain an attorney right away to get in front of any inquiry.

Jared Altman · Answer

Well, I she can't remember the. How can she know that she didn't consent?  Sounds like a very weak case to me.

Craig Elhart · Answer

He could be charged with criminal sexual conduct even though he was drunk.  He should consult with an attorney now to determine his options.

Dennis Roberts · Answer

Sex with someone unconscious is still rape even if the rapist was also loaded.

John DeVito · Answer

Your friend can be charged with rape; but, being convicted is another story.  The victim is alleging that she did not consent to the sex.  That may be challenged.  Who initiated the sex?  Did she voluntarily go with your friend to a room or location?  Are there witnesses who saw them flirting with each other? You can bet that the DNA is your friend's.  The question is consent.  A jury may not be sympathetic with a victim who got so drunk that she doesn't know who she slept with.

Jason Savela · Answer

In sex offense cases, it is best to sit down with an excellent criminal defense attorney that knows how to try these cases.  Each fact is very important and I would not let the rest of my life depend on an email response.  He could get many years of prison, he could get probation  but, based on what I am hearing about this case in this email, he is not guilty of a crime  that does not mean he could not be convicted but with proper defense counsel advising, I think this is a not guilty.

Mark R. Thiessen · Answer

Yes he can be accused of rape.  And that is a very serious charge.  If he is still talking to this girl, tell him to be careful what he says as he is probably being recorded.  He needs to lawyer up with the best lawyer he can afford.

Michael Garber · Answer

If she was too drunk to consent it is rape. If she just doesn't remember she was willing when they were having sex it's not rape, but it's a problem for the guy if she says she didn't consent.

Michael Lynch · Answer

Being under the influence does not sound like a defense to me.  Perhaps if he could show the intoxication was involuntary, ie he was slipped a  drink which had alcohol in it, but he did not consent to drinking  alcohol and did not know the drink contained alcohol when he consumed  it.  You raise more questions than I can answer. You ask what can be done if the DNA is his, but do not state if anyone else was present.  These and other questions should be reviewed with his attorney.

Eric Sterkenburg · Answer

There is rape when the victim is intoxicated and cannot consent.

Dorinda Ohnstad · Answer

Maybe. The key is whether there was consent or not. If the woman does not remember the details of the night because she was intoxicated it certainly makes for a weak case for the DA's Office to prosecute.If she doesn't remember, how can she get on the stand and say that she did not consent. The burden of proof in a criminal proceeding is guilt beyond a reasonable doubt. Arguably the fact that she doesn't remember and was voluntarily (I'm assumingthis is the case) intoxicated would provide the jury with reasonable doubt. However, ultimately it will be up to the DA's Office to determine whether they want to pursue charges or not.

Jonathan Willett · Answer

If she says she did not consent, then it is possible.  However, if she does not remember, it is unlikely.  No matter what, he can claim consent as a defense, but without any memory that maybe hard.  Their self induced intoxication may also affect his criminal liability.

Aaron Goldsmith · Answer

An individual can be charged if the "victim" states that she understood what was going on but was too drunk to stop him.  His mental state may also be used to help though.  If charges are brought, your friend needs an experienced criminal defense attorney to help protect him.

Aaron Black · Answer

He could be charged with rape, but he has a great defense. If convicted after trial he can be looking at years in prison. I would need to know more details to give you a better answer. Contact a local criminal defense attorney immediately if the police have already been contacted.

Todd Landgren · Answer

This is critical! Do not talk to the police!! Do not say anything to anybody about "not remembering"!! Get in contact with a lawyer immediately so he/she can talk with cops or prosecutor. Charges can be filed, even if both were drunk. It depends on who is believed!

James Smith · Answer

Intoxication is not a defense to rape.  However, the prosecutor has the burden of showing lack of consent, however, if the victim was too drunk to give consent then you're friend needs a good attorney to get the charge reduced.

Carina Laguzzi · Answer

The short answer is yes but there is a lot more that I would need to know before I can give a more complete answer.  For example, has the woman made a police report?  If she does not remember anything, how can she accuse your friend?  If there is a police report, your friend should NOT consent to a DNA test until, and after, he has consulted with an experienced criminal defense attorney.  He should also NOT go to Detectives (to give his side of the story) until he has consulted with an attorney.  He should look for an attorney with experience in sexual assault cases.  Finally, your friend should refrain from talking about this case with anyone.

David Ayer · Answer

Should the state's prosecutor in the case go forward, the state will be required to prove beyond a reasonable doubt that the female did not consent to sexual intercourse and that your friend had the specific intent to commit the crime. There are many defenses which can be raised in this situation, including intoxication. Your friend needs a good criminal defense attorney as the penalties for this crime are very serious.

John Patrick Yetter · Answer

Whether or not someone is charged in a case like this depends on more than the DNA.  Certainly DNA doesn't help his case, but the truth is it only shows the act was committed, not what the circumstances of the act were.  Your friend should contact a criminal lawyer to interface with the police for him.  That is by far the wisest thing to do at this point, and is the thing that can most distinctly influence whether he is charged or not.

Edward Blum · Answer

He can be charged with the specific offense of non-consentual sex (rape) with someone who is unable to give their consent.  It is a felony.  He could face jail or prison time.

Joseph Dane · Answer

Rape of an intoxicated person carries up to 8 years state prison.  Your friend (and probably you) need to be sitting down with a local criminal defense attorney.  I'd also strongly suggest keeping your mouth shut about any of this until you talk to your lawyer.  No facebook, myspace, twitter, emails, texts... nothing.  Keep in mind that the police can record any phone calls, so if she calls you and wants to talk, it's probably being recorded by the police.  Find a good local criminal defense attorney ASAP.  This could get ugly real quick.

Stephen Freeborn · Answer

Yes, he can still be charged. Being drunk is not a defense. The critical issue is whether or not there was consent.  Another issue is the age of the victim.  Was she under age? If so, your friend's problems are magnified greatly.  Penalties:  jail time, possibly prison time, being labeled as a sex offender and being required to register with the state and report regularly his whereabouts. This label will follow him for the rest of his life and can impact where he lives and works.  This is not a good situation.

Mark Broughton · Answer

That is a very troubling situation. There are many cases that come through the courts, and ones that I have handled, just like this one, so it's not new. The short answer is yes, some form of sexual assault or other charge can be filed, depending on what she said happened and the facts and circumstances surrounding the event.  The best advice I can give you is to get your friend to a good criminal defense attorney immediately; and, do not make any statements to the police or other investigator (or friends or anyone else other than an attorney) - despite what he might think, he will not be helping himself by doing so regardless of what the police tell him. The consequences for this type of offense can be potentially very serious, so get some sound advise right away!

Craig Orent · Answer

Yes, someone (your friend) can be charged with rape based on allegations. Whether the government pursues the case by in fact charging him and proceeding to trial is a different question that will depend on the overall facts. If your friend suspects he's going to be charged with a crime, he should immediately consult a qualified criminal defense lawyer; he should not talk to anyone about the circumstances other than an attorney that he seeks out.

Keeley D. Heath · Answer

Your friend needs to not talk to the police.  This is VERY important.  He also needs to hire counsel who specializes in handling sexual assault cases BEFORE HE IS CHARGED WITH A CRIME.  It is imperative that he refuse to talk to the police, and that he hire counsel.  He also should decline to take a polygraph examination if offered.  Tell your friend he needs to get in contact with an attorney IMMEDIATELY, as he is facing prison time, registration as a sex offender, and being labeled a felon for the rest of his life.  The consequences for this are lifelong.  He should take this very, very seriously. If she is alleging rape, he could be charged with Criminal Sexual Conduct in the 1st degree, a life offense felony.

William C. Gosnell · Answer

He needs to hire a criminal defense attorney.  If this women states that she was raped then his defense assuming the dna test is positive  is that the sex was consentual.  If the woman can't remember any details then charges should not be brought.

Jeff Yeh · Answer

Rape is an extremely serious charge, and it could land a person in prison for decades. Your friend better hire an experienced criminal defense attorney ASAP before he talks to the wrong people (ie. cops) and incriminates himself.

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Will my friend be accused of rape if both of them were under the influence?

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