Interactions between adults can be complicated, nuanced, confusing and misunderstood. Verbal communication is but one form of expression; more often than we realize, we communicate in non-verbal ways, too. These interactions sometimes involve intimate, sexual scenarios. And, in a permissive culture that indulges in alcohol and other mood altering substances these interactions can alter individuals lives in unimaginable ways. Sometimes two individuals interact, and in the end one leaves a victim and the other a perpetrator. But who deserves which title, if any?
Rape is an egregious crime. This fact is recognized in the Commonwealth of Virginia by its punishment. Any person convicted of Rape can be sentenced to a term of imprisonment of Life, or any term not less than 5 years. Further, depending on the accused's record or the age of the victim, mandatory penalties apply that include a sentence of Life and no less. It is easy to understand why the crime of Rape is punished so severely if you look at the common law elements, meaning the elements known in American jurisprudence and beyond to England for hundreds of years. Traditionally, a person is guilty of Rape if he has sexual intercourse with the victim without her consent by exerting force to overbear her will. This is known simply as Forcible Rape. Virginia has other forms of Rape, known as statutory offenses. These offenses make having sexual intercourse with a victim illegal based solely on the victim's age. This makes sense, too - the law deems, as it should, that children of a certain age cannot consent to sexual activity, regardless of the issue of force, consent, etc. Rape can also occur by threat or intimidation which is a relatively new theory in the law - new in the last half century. Those theories recognize a threat of harm or intimidation can overbear the will of a victim the same as the use of physical force.
By statute, Virginia recognizes two other theories of Rape: Rape by Mental Incapacity and Rape by Physical Helplessness. It is in these types of cases an otherwise law abiding, non-predatory person can find himself in real trouble. Sometimes the trouble is just, but in some instances the "defendant" is actually the victim. Let me explain why.
On the issue of mental incapacity, the law says that if you have sexual intercourse with a person who is unable to understand the nature or consequences of the sexual act involved, and you accomplish the sex act through the use of that incapacity, you have committed Rape. This theory of Rape is to protect vulnerable members of our society that have mental deficiencies. But, under Virginia law, a person can be mentally incapacitated as a result of great intoxication - this intoxication can be brought on by their own volitional consumption of alcohol or drugs. This is a remarkable situation because, also under Virginia law, a person who consumes a great amount of alcohol, or any intoxicant for that matter, cannot assert his intoxication as a defense to any crimes (except for premeditated first-degree murder). This means that two people who are equally intoxicated, supplying each other shots all evening, could end up with legal principles impacting their lives very differently. For one, the intoxication negates the ability to consent, even if there was no protest, resistance or other indicia of a lack of willingness to participate. For the other, the incoherent level of drunkeness provides no defense to a crime otherwise unintended.
Rape by Physical Helplessness means that a person commits Rape if they have sexual intercourse with a person who is unconscious, or who is otherwise physically unable to communicate an unwillingness to engage in the sexual act. This law again is designed to protect vulnerable people who are unable to resist the act because they are either sleeping or are, for example, paralyzed. But the law in Virginia also will permit a person who is greatly intoxicated by drugs or alcohol, even taken by their own choice, to be in a state of physical helplessness. You see, the mental incapacity and physical helplessness states do not have to be permanent conditions. And, for the defendant voluntary intoxication on his part is no defense.
To be clear, there are people in our society who prey and take advantage of the vulnerable and of those temporarily vulnerable. This happens in nursing facilities, hospitals, and on college campuses far too often. The great struggle of right and wrong, justice and injustice, however, usually springs up in the last category - college campuses or other settings with young people using drugs and alcohol.
The haze the morning often brings after a night of indulgence and debauchery can leave both parties not recalling what happened. Brownouts, blackouts and snippets of moments that flash in our minds can leave one person feeling as though they were taken advantage of, though neither really recalls what even happened. It is in this scenario that a person can find themselves accused of a heinous crime that was not committed. And it is in this scenario a person may sincerely believe they are the victim though they bring forward an injustice - they unwittingly bring forward a false allegation. Remember, being intoxicated alone does not mean you are mentally incapacitated or physically helpless; neither does a brownout or blackout mean so either.
A lot of people eat pizza, watch television, dance on a dancefloor, and interact with their friends - yet remember little of it in the morning because of their inebriated state. This does not mean they were unaware of the nature and consequences of eating, socializing or dancing nor does it mean that at the time they were unable to physically resist those activities. It simply means they don't recall what they chose to do.
The crime of Rape is awful and the consequences for victims and defendants are monumental for obviously different reasons. The topic is an uneasy one to discuss. However, if you are involved in a scenario where you are accused of wrongdoing after you believed a consensual encounter took place, contact a lawyer immediately. You would be wise to not speak with the police, or your accuser until you have done so.