Are Fireworks Illegal in Fort Lauderdale?
July 4, 2019
Exploring the Florida Sex Offender Registry
August 12, 2019

Is Drinking a Defense in Sex Crime Cases?

By Hager & Schwartz, P.A.

July 9, 2019

Drinking changes how people act: the girl that’s typically shy is making new friends, the guy that never talks is suddenly belting out Take Me Home, Country Roads by John Denver. While these examples of intoxication are harmless (and funny), there is a drunken scenario that should be taken seriously: sexual encounters.

Setting the Scene

Let’s paint a picture: guy meets girl at the bar, both parties get drunk, both parties decide to take the party elsewhere, they have consensual sex, they part ways. A pretty common scenario, right? Well, let’s change one aspect of the story.

Let’s change the scenario to add that in the morning, one of the parties doesn’t remember what happened. There is evidence of a sexual encounter, but they fear they were taken advantage of. They file a police report, and the other party is charged with rape.

As previously stated, both parties were drunk, so the accused wants to use that fact to defend their actions. However, what does Florida law say about intoxication and sexual encounters?

Sexual Encounters & Intoxication

Florida law states that, “When consent of the victim is a defense to prosecution, evidence of the victim’s mental incapacity or defect is admissible to prove that the consent was not intelligent, knowing, or voluntary; and the court shall instruct the jury accordingly.”

All that to say, the accuser’s drunkenness is grounds to prove that they were mentally incapacitated, and therefore, could not give consent to the sexual act. Therefore, by Florida’s definition, a drunk person cannot give consent to sex.

What about the person being accused? Will the defendant’s drunkenness help their case? In short, the answer is maybe. With the right criminal defense attorney on the case, the defense can show the jury that both parties were drunk, and that should be taken into consideration when determining if the defendant was guilty of rape.

However, drunkenness helps the prosecution and is not an automatic help for the defense.

Need Help with Your Case?

If you or a loved one is accused of sexual assault, Hager & Schwartz is here to help. Our experienced criminal defense attorneys will look at every angle of the case to find the best defense for you.

Call (954) 840-8713 now for an immediate consultation for your case!