criminal-law consent sexual-assault rape sexual-offences
Countries where being too drunk to consent does not apply?
<p>Are there any countries where the victim being too drunk to consent is not sufficient to criminally pursue the perpetrator for a sexual offence?</p>
<p>For example, a girl goes into a bar and voluntarily drinks enough alcohol to be considered drunk. The victim is then taken advantage of sexually in her drunken state. The next day she reports this to the police.</p>
<p>This question is not related to being poisoned with a date rape drug, or being forced to drink alcohol.</p>
<p>Edit below to address comments.</p>
<p>I think before 2016 in Germany a woman being too drunk to consent was not considered a crime. Whether this is correct, I wonder whether there are any countries where this is the scenario?</p>
<p><strong>Bounty - I am looking for answers like the one mentioning Japan, just for other countries.</strong></p>

<h2>Example where rape charges requires use of violent force:</h2>
<p>In Japan, for example, the legal definition of sexual rape is:</p>
<blockquote>
<p>A person who, through assault or intimidation forcible commits sexual intercourse with a female of not less than thirteen years of age commits the crime of rape and shall be punished by imprisonment with work for a definite term of not less than 3 years. The same shall apply to a person who commits sexual intercourse with a female under thirteen years of age.</p>
</blockquote>
<p>Therefore, someone who has sexual intercourse with another person while they are intoxicated may not be considered rape if the act did not involve violent force.</p>
<p>It is important to note that this definition has some limitations. For example, it does not account for victims who are violated while incapacitated in a medical setting, and it also does not consider the possibility of male victims.</p>
<h2>Example where rape charges requires non-voluntary intoxication:</h2>
<p>There have also been attempts within the legal system to distinguish between people who were unknowingly drugged and those who voluntarily consumed a large amount of alcohol and became intoxicated.</p>
<blockquote>
<p>The Minnesota Supreme Court ruled that a person can’t be found guilty of sexually assaulting someone, who is mentally incapacitated due to intoxication, if that person became intoxicated by voluntarily ingesting drugs or alcohol.</p>
</blockquote>
<p>In Minnesota, for example, there was a requirement for non-voluntary intoxication.</p>
<p><a href="https://www.washingtonpost.com/national-security/2021/03/26/minnesota-rape-alcohol/" rel="nofollow noreferrer">A Minnesota man can’t be charged with felony rape because the woman chose to drink beforehand, court rules - March 26, 2021</a></p>
<p>However, the Minnesota legislator has recently amended their legal codex for this.</p>
<p><a href="https://www.cbsnews.com/minnesota/news/new-minnesota-law-is-significant-victory-for-survivors-of-sexual-assaults-while-intoxicated/" rel="nofollow noreferrer">New Minnesota Law Is 'Significant Victory' For Survivors Of Sexual Assaults While Intoxicated - September 14, 2021</a></p>

<p><a href="/questions/tagged/france" class="post-tag" title="show questions tagged &#39;france&#39;" aria-label="show questions tagged &#39;france&#39;" rel="tag" aria-labelledby="france-container">france</a></p>
<p>The statutory definition of rape is rather short: <a href="https://www.legifrance.gouv.fr/codes/id/LEGISCTA000043409028/" rel="nofollow noreferrer">Code Pénal 222-23</a></p>
<blockquote>
<p>Tout acte de pénétration sexuelle, de quelque nature qu'il soit, ou tout acte bucco-génital commis sur la personne d'autrui ou sur la personne de l'auteur par violence, contrainte, menace ou surprise est un viol.</p>
</blockquote>
<blockquote>
<p>Any act of sexual penetration, of any nature, or oral sex act, made upon another or upon the author by violence, coercion, threat, or surprise is rape.</p>
</blockquote>
<p>That definition does not include any mention of alcohol. In fact, it does not mention consent! Let us go back to the basics of criminal liability to entangle all that.</p>
<h2>Mens rea</h2>
<p><em>Mens rea</em> or &quot;criminal mind&quot; is the intent to commit a crime. That is a component of 99% of crimes, and codified by <a href="https://www.legifrance.gouv.fr/codes/article_lc/LEGIARTI000006417208" rel="nofollow noreferrer">code pénal 121-3</a>.</p>
<p>The mental image of rape for most people is a violent thug catching an unlucky woman in a dark alley. That one is easy: no reasonable defendant would think a woman (that he never met before) agreed to have sex right here and then. However, that cliché <a href="https://en.wikipedia.org/wiki/Rape#Statistics" rel="nofollow noreferrer">is statistically rare</a> - it is about 30% of police reports, and that is a heavily inflated figure due to selection bias (you will report a stranger more easily than a date, and a date more easily than a husband-for-ten-years).</p>
<p>In the more common case, the victim knew the defendant beforehand, and was too shocked to object. The defendant may then assert that (at the time) he (or she) had a good-faith belief that the victim was willing. Because that is a constitutive element of the crime, and not an affirmative defense, the burden of proof falls on the prosecution. That has unquestionably led to victims not pressing charges, or prosecutors dropping cases.</p>
<p>As it stands, proving mens rea relies heavily on the exact fact patterns of a case, and the interpretation thereof. Some activists are pushing for a &quot;yes means yes&quot; law (i.e. without explicit consent that can be withdrawn at any time, it’s rape) but I doubt it changes much to the problem of proof when facts are disputed (the defendant can always claim that consent was given verbally).</p>
<p>Knowing that the victim was drinking more than reasonable and taking advantage of it (or worse, <em>causing</em> her/him to drink too much) would probably establish mens rea if proven.</p>
<h2>Actus reus</h2>
<p><em>Actus reus</em> means the objective basis for the prosecution (the one defined in the statute at the top). How does alcohol fit in the &quot;violence, coercion, threat or surprise&quot; clause?</p>
<p>A cursory look at the jurisprudence seems to reveal that the &quot;surprise&quot; clause is the most common in such cases. (Unfortunately, I did not keep track of the count nor found a good review article.) The idea is that the victim is not fully aware of what is going on because of inebriation.</p>
<p>A minority of cases are based on coercion: actions that would usually be mild become coercive due to the victim’s inability to resist them. If I had to guess, the test of &quot;did the victim consent&quot; is applied in all cases, but the more the victim is drunk, the more it is likely to fall in the &quot;surprise&quot; rather than &quot;coercion&quot; bucket.</p>
<p>The most interesting case I found is <a href="https://www.legifrance.gouv.fr/juri/id/JURITEXT000026093631" rel="nofollow noreferrer">Cour de cassation, criminelle, Chambre criminelle, 23 mai 2012, 11-85.933</a>. The court of appeals based its guilty verdict on &quot;surprise&quot; grounds, and established the following facts:</p>
<ul>
<li>The victim was too drunk to stand, and had to be taken back to her room (-&gt; surprise)</li>
<li>The defendant locked the room (-&gt; coercion)</li>
</ul>
<p>The verdict was appealed to the Cour de Cassation (highest appeal court, which only hears disputes of law), with (among other things) the following arguments:</p>
<ol>
<li>The victim was drunk enough to lose any inhibition, but that did not mean she was unable to agree to sex; the court did not establish the required &quot;entire absence of consent&quot; <em>(totale absence de consentement)</em></li>
<li>The same fact cannot be both a constitutive element of an offense and an aggravating circumstance, yet the court used the victim’s inebriation both to prove &quot;surprise&quot; and to prove the victim’s vulnerability (an aggravating factor, <a href="https://www.legifrance.gouv.fr/codes/article_lc/LEGIARTI000043409300" rel="nofollow noreferrer">CP 222-24</a>)</li>
<li>Locking the room before having sex when there are people around is entirely reasonable and does not establish coercion.</li>
</ol>
<p>The Cour de Cassation rejected all these arguments as matters of fact rather than law. This implies that, with the appropriate factual basis:</p>
<ol>
<li>&quot;entire absence of consent&quot; is not needed for a conviction</li>
<li>the same objective basis (inebriation) can be used for two factual elements (one component of the offense and one aggravating circumstance)</li>
<li>a reasonable-looking action can be coercive in context.</li>
</ol>
