The issue of intoxication and consent came up recently in the Fort Worth Court of Appeals in Anderson v. State, 2012 WL 1222148. In Anderson, two men met two ladies at a bar during a night of drinking. One young lady ended up somehow at the residence of one of the men, along with her friend who appeared to have gone consensually. Anderson claimed they had consensual intercourse, but his accuser said she woke up during unconsensual intercourse and tried to fight him off. The end result was that, “as authorized by the indictment, the jury convicted Anderson of intentionally or knowingly causing the penetration of Miller’s female sexual organ … while knowing that he did so without her consent and that she was either unconscious or physically unable to resist or that she did not consent and was unaware that the sexual assault was occurring. (citations omitted)” The court of appeals noted the established law that “[w]hen assent in fact has not been given, and the actor knows that the victim’s physical impairment is such that resistance is not reasonably to be expected, sexual intercourse is ‘without consent’ under the sexual assault statute. Elliott v. State, 858 S.W.2d 478, 485 (Tex.Crim.App.), cert. denied, 510 U.S. 997, 114 S.Ct. 563, 126 L.Ed.2d 463 (1993).”
We don’t know what happened in the hotel room in San Antonio between these two football players and the alleged victim. What we do know is that just because a person is too intoxicated to resist a sexual encounter, that is not consent to sexual activity. Not only is unconsciousness not consent, being intoxicated to the point of being unaware that the sexual assault is occurring is not consent.
If you or someone you know is being investigated or prosecuted for a crime, call Board Certified Criminal Law Specialist Micah Belden at 903-744-4252.