When alcohol and sex are involved, things can quickly become complicated. What might seem consensual in other situations can be considered non-consensual if either person is blackout drunk or unconscious before, during, or after the act. It’s essential to approach these situations with extra care, respect, and clear communication. Always check in regularly to ensure mutual and explicit consent.
Under Colorado law, a person cannot provide knowing consent if they are severely intoxicated. However, the mere fact that two people had sex while drunk does not automatically mean it qualifies as rape—referred to as sexual assault under the Colorado Revised Statutes. Numerous circumstantial nuances can influence whether the law classifies the act as rape, as well as whether prosecutors can prove it beyond a reasonable doubt.
If you have been accused of rape following a sexual encounter involving alcohol, it is crucial to understand the legal issues and challenges you may face. Here, we’ll explore the key legal implications of engaging in sexual activity with an intoxicated person. Most importantly, you should contact an experienced sexual assault attorney immediately and refrain from speaking with law enforcement about the incident until you have legal counseling on your specific situation.
Understanding Consent in Colorado Law
The definition of “consent” under Colorado law is “cooperation in act or attitude pursuant to an exercise of free will and with knowledge of the nature of the act.” In other words, to be a consenting partner, a person must know that they are participating in a sex act, and they must be able to cooperate either “in act or attitude.” Another important concept in sexual assault under Colorado law is “physically helpless”: “unconscious, asleep, or otherwise unable to indicate willingness to act.” A person cannot consent if they are physically helpless.
Obviously, there is a significant difference between casual drinking and becoming physically helpless. So, at what point does a person become “too drunk to consent”?
Unfortunately, there is no bright-line rule about a level of intoxication that makes a person unable to give consent. Instead, the court will look at the evidence and consider witness accounts. The district attorney (DA) might look at receipts to see the amount of alcohol individuals consumed. They might also ask witnesses whether one or both parties appeared to be dozing off at the bar or house party, struggling to walk, or having difficulty speaking, all signs that point to an individual at or near a point of being unable to consent.
What Does Colorado Law Say About Drunk Sex?
Under Colorado law, drunk sex is not necessarily sexual assault. Sexual assault is defined in Colorado Revised Statutes § 18-3-402, which describes it as sexual intrusion or sexual penetration in a number of different situations, including “The actor knows that the victim is incapable of appraising the nature of the victim’s conduct,” and “The victim is physically helpless and the actor knows the victim is physically helpless and the victim has not consented.” This can include vaginal, anal, and oral sex. Both of these descriptions could apply to people having drunk sex.
If a person is so drunk that they don’t know what they’re doing or if they are incapable of expressing their will in the situation, then sex could be considered sexual assault.
Note that both these descriptions include that the actor must have knowledge of the victim’s condition. A lack of knowledge about the victim’s condition can be a defense against sexual assault. However, the courts have found that the actor cannot claim ignorance about the victim’s condition because the actor was drunk themselves. In other words, being drunk is not a defense against sexual assault charges.
Can a Drunk Person Give Informed Consent?
Sometimes. A drunk person is not necessarily incapable of giving informed consent to a medical procedure. Doctors are trained to assess a person’s ability to understand the procedure being explained to them.
Although this is not the same as consenting to sex, it can help you understand how Colorado looks at the issue. If both parties have consumed alcohol, but both are still cogent and capable of making decisions, it will probably not be considered sexual assault. This is true even if people make decisions they might not make when sober.
For example, nonsmokers often smoke a cigarette when they drink alcohol. If a person asks for a cigarette after drinking and is able to handle it, light it, and smoke the entire cigarette without risking dozing off and starting a fire, it’s clear that they demonstrated “cooperation in act or attitude pursuant to an exercise of free will and with knowledge of the nature of the act.” They might be considered capable of consenting. However, if a person asks for a cigarette, but drops it, needs someone else to light it, and dozes while the cigarette burns down to their fingers, they are likely incapable of providing consent.
Of course, without a bright-line rule, it’s best for people to reconsider sex when drunk. They should say goodnight and make plans to reconnect at another time for sex. Juries can take unpredictable positions about these situations that often revolve around the minute particulars of a case, so it’s impossible to specifically describe exactly when a person can’t give consent to sex.
Common Scenarios and Legal Outcomes
There are several potential scenarios that can play out when drunk people have sex. Often these can lead to sexual assault charges.
Scenario 1: Both Parties Are Drunk
When both parties are drunk, it can be hard to avoid sexual assault charges or charges of unlawful sexual contact if intrusion or penetration did not occur during the act.
The court will do its best to assess the capabilities of the parties involved, based on physical evidence and witness accounts. However, if both parties are drunk, there is a significant risk that a person might be convicted of sexual assault.
Scenario 2: Passed-Out or Incapacitated Individuals
If one of the persons involved has passed out or become incapacitated due to alcohol consumption, they are clearly incapable of providing consent, which means that sex with them is at least a class 4 felony. It might be considered a class 3 felony if the actor is suspected of plying them with any drug against their consent and a class 2 felony if the victim suffers serious bodily injury.
Scenario 3: Use of Substances Beyond Alcohol
If people are using other recreational drugs together, it can further impair their ability to provide or assess consent clearly.
There is also a risk that the person claiming that they were assaulted might say that they were given a drug without their consent. When a person gives someone drugs without their consent, especially those considered date rape drugs, sexual assault becomes a class 3 felony.
Scenario 4: What if the Parties Are in a Relationship?
Colorado law explicitly states that the existence of a current or past relationship is insufficient evidence to constitute consent. This includes any previous history of sexual activity. However, it can be considered as part of a body of evidence that casts reasonable doubt over whether the act was consensual or whether the accused believed the act was consensual.
Class Penalties
Class 4 Felony
- Prison Sentence: 2 to 6 years (up to 12 years in aggravated cases)
- Fines: $2,000 to $500,000
- Parole: At least 3 years after release
- Other Consequences: Mandatory registration as a sex offender
Class 3 Felony
- Prison Sentence: 4 to 12 years (up to 24 years in aggravated cases)
- Fines: $3,000 to $750,000
- Parole: At least 5 years after release
- Other Consequences: Mandatory registration as a sex offender
Class 2 Felony
- Prison Sentence: 8 to 24 years (up to 48 years in aggravated cases)
- Fines: $5,000 to $1,000,000
- Parole: At least 5 years after release
- Other Consequences: Mandatory registration as a sex offender
Other Legal Consequences
Sex Offender Registry: Conviction for sexual assault in Colorado requires mandatory registration as a sex offender, often for life.
Civil Penalties: Victims may file civil lawsuits for damages, which can result in significant financial liability in addition to criminal penalties.
Why Consult Attorney M. Colin Bresee?
Accusations of sexual assault after drunk sex often stem from miscommunication and misunderstanding. However, convictions for sexual assault in these situations depend on the complex nuances of the law. If you want to share your side of the story and have the best chance of avoiding conviction for what you believe was an innocent act, it’s important to consult an attorney who understands the intricacies of these cases. An experienced lawyer can guide you on the critical steps to take before, during, and after the trial to protect your rights and work to avoid the severe penalties of a sexual assault conviction, including prison time and lifelong registration as a sex offender.
Criminal defense attorney M. Colin Bresee has experience as both a prosecutor and a defense attorney. He understands how sensitive and complicated sexual assault charges can be. By listening to your story, he can help you build a defense based on the facts, giving you a better chance of achieving the best possible outcome for your case. Mr. Bresee can also advise you on when to consider a plea deal and when it’s better to proceed to trial. He has a track record of helping clients achieve better results at trial than they were offered in plea deals.
When you work with the Law Offices of M. Colin Bresee, you’ll have Mr. Bresee as your attorney from start to finish. We are committed to providing high-quality representation and offer payment plans to make your defense affordable.
To learn more about how M. Colin Bresee can help if you are accused of sexual assault, contact the Law Offices of M. Colin Bresee today for a free initial consultation.
Legal Resources and Further Reading
For more information about sexual assault charges please read the following:
- Provide links to internal resources:
If you are a rape survivor, the state of Colorado has assembled a list ofresources that can help you deal with the medical, financial, and psychological consequences of your experience.
Disclaimer: This page is intended for informational purposes only, and should not be considered legal advice. Nor does it establish a client-attorney relationship. Previous results are no guarantee of future outcomes.
