Is Being Drunk a Defense Against Sexual Assault Charges?

Multiple studies and data analyses have established statistical links between intoxication and sexual assault.  However, while intoxication may be a common factor in rape and sexual assault cases, that does not mean it is a defense against criminal charges.  On the other hand, intoxication of the defendant and/or victim does affect how the case is prosecuted, and can ultimately have a major impact on the final outcome of the trial.  In this article, our sex crime attorneys will explain how the use of alcohol can elevate sexual assault charges to rape charges, cover Pennsylvania’s enhanced penalties for intentionally impairing victims, and go over some of the key factors which must be weighed during criminal proceedings.

Some states do not make a legal distinction between rape and sexual assault, consolidating them together into a single felony offense.  However, Pennsylvania characterizes (and penalizes) these crimes differently.  Rape and sexual assault are not synonymous under the definitions provided by Pennsylvania’s criminal statutes.  In light of this distinction, it’s important for defendants to understand precisely what the charges against them involve.

Both rape and sexual assault involve sexual intercourse (or deviate sexual intercourse) without the consent of the victim or complainant.  However, rape is charged only when certain additional factors are also in place.  In other words, rape is an even more serious crime than sexual assault, which is reflected in the way each offense is graded.  Sexual assault is a second degree felony, while rape is a felony of the first degree.

In some circumstances, rape is also subject to special enhanced penalties, which we will discuss in detail later.  However, we must first examine when and why sexual assault is elevated to rape, because drugs and alcohol play a significant role in determining which crime a defendant should be charged with in the first place.


beer and handcuffs for a drunken sexual assault

Under 18 Pa. Cons. Stat. § 3121, a defendant can be charged with rape when he or she commits sexual assault (intercourse without consent) and any of the following factors are in place:

Put more simply, intentionally using drugs or alcohol to lower a victim’s resistance is one of the factors which can turn sexual assault charges into rape charges.  In other words, the victim’s intoxication can actually make the charges more serious than they would have been if alcohol was not involved.

The victim’s intoxication also plays a role in determining whether the defendant should be subject to the enhanced penalties for rape, which we noted earlier.  These enhanced penalties may be imposed if the defendant "substantially impaired the complainant’s power to appraise or control his or her conduct by [secretly] administering or employing… any substance [i.e. alcohol] for the purpose of preventing resistance through the inducement of euphoria, memory loss and any other effect."

Under  18 Pa. Cons. Stat. § 3121(b), enhanced penalties include up to 10 additional years in prison on top of the standard 20-year term, bringing the potential sentence up to 30 years.  An additional fine of up to $100,000 can also be imposed, bringing the potential fine up to $125,000 in combination with the standard $25,000 fine for first degree felonies in Pennsylvania.

krazner & long criminal defense attorney

So far, we have discussed the legal ramifications of using alcohol to impair the victim.  But what if both parties were intoxicated?

This is unquestionably a complex and often grey area of criminal prosecution.  While intoxication does not necessarily remove the defendant’s criminal liability, it does impact the manner in which the case is argued and evaluated.

This exact topic was explored by the National District Attorneys Association (NDAA) in a 2007 publication titled "Prosecuting Alcohol-Facilitated Sexual Assault."  As the NDAA noted, "It is the prosecutor’s job to show jurors why the case before them is a case of sexual assault and not just drunken sex that was later regretted…  There is not a universal BAC [Blood Alcohol Content] at which the law or the experts agree that people are no longer capable of consenting to intercourse."  Therefore, "numerous factors" must be examined on a case-by-case basis.

Some of these factors include:

If you were arrested for rape in Philadelphia or elsewhere in Pennsylvania, or if you’ve been charged with other sex crimes such as child pornography and online solicitation, you need an experienced criminal defense lawyer to fight the charges and protect your liberties.  If you are convicted, not only do you face incredibly harsh penalties and the creation of a criminal record - you will also be forced to join the Sex Offender Registry.  The registration period can last for decades, or even the rest of your life.

To set up a free, completely confidential legal consultation, call the law offices of Krasner & Long at (215) 882-9752.  We will keep your information private, and you will not be charged any fees.

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