Victim Intoxication and Capacity to Consent in Sexual Assault Statutes across the United States

Alcohol use is common in cases of sexual assault. These cases raise significant questions about a victim’s capacity to consent to sexual intercourse. In many United States jurisdictions, intoxicated victims may be considered mentally incapacitated only if they have been administered alcohol or other substances involuntarily. A recent Minnesota Supreme Court case illustrated why reform is necessary in this area of criminal sexual conduct law. We present this case and the results of a review of felony criminal sexual conduct laws in the fifty states of the United States and the District of Columbia. We find that nearly half of the jurisdictions surveyed require that a victim must be involuntarily intoxicated to be considered incapacitated or impaired. We draw on Minnesota’s experience with legislative reform of its sexual assault laws as well as judicially mediated reform mechanisms to present a roadmap for overcoming this voluntary intoxication caveat. Finally, we discuss the implications of these laws for victims of sexual assault and for the practice of forensic psychiatry in cases of criminal sexual conduct involving victim intoxication.