Consent and Intoxication

Mike is 23 years old. He and his 2 male friends have individual hotel rooms at a conference for the week. One night all 3 decide to go out drinking on the Riverwalk in San Antonio. They have several drinks each and wind up at a piano bar where they start drinking more alcohol.

Jen is 23 years old. She and her 2 female friends have individual hotel rooms at a conference for the week. One night all 3 decide to go out drinking on the Riverwalk in San Antonio. They have several drinks each and wind up at a piano bar where they start drinking more alcohol.

Mike and his group of friends meet Jen and her group of friends and they all start talking and continue drinking.

At some point during the night, both Mike and Jen participate in a game on the stage of the piano bar in front of an entire audience. Both appear intoxicated.

At around 1am, Jen’s friends want to go back to the hotel and sleep. Mike’s friends want to do the same. Jen and Mike want to stay out together. They go to 1 additional bar and have 2 more drinks each. At the bar, there is a portable breathalyzer they each take for fun. They each register as a .21 on the breathalyzer.

Jen and Mike stumble along the Riverwalk towards Mike’s hotel where an elevator camera shows Jen and Mike kissing in the elevator. The hotel’s hall camera then shows Jen and Mike leave the elevator. Mike trips and his body hits the wall for balance. Jen trips and falls and Mike helps her to her feet. They both stumble to Mike’s door where Mike swipes a key card. They go into the room.

Jen wakes up in the morning in Mike’s hotel room with her clothes completely off and doesn’t remember how she got there.

Mike wakes up in the morning in Mike’s hotel room with his clothes completely off and doesn’t remember how he got there.

If the fact pattern is left there, how do you feel?

What if we add some more information?

Jen gets dressed and leaves.

Mike notices his penis is a bit irritated but doesn’t ever remember consenting to having sex with Jen. Mike has a girlfriend back home.

Mike calls 911 and states he thinks he may have been sexually assaulted.

Mike is taken into a “soft interview room,” [a room with a comfortable couch and they play jazz music which Mike got to select because jazz music relaxes him] offered counseling and is told that he is brave for coming forward. He is told that the police are there to represent him and that this is the time when they will begin to advocate for him. A detective then takes Mike’s statement.

Police arrive and the Crime Scene Unit swabs Mike’s penis and the swab is sent to the lab for DNA testing.

With the assistance of a detective, Mike calls Jen on a pretext phone call. Jen apologizes and says she is sorry but thought everything was fine last night.

The police interview Jen. Jen tells the detective that all was fine that night. She went back to Mike’s room, he fell asleep and they never touched each other.

The case is kept open pending the DNA results.

Approximately 10 months later, the DNA results are received from the lab. Jen cannot be excluded as a contributor to the DNA mixture from the swab from Mike’s penis. There are actually source numbers from the DNA which would indicate the only 2 individuals in the mixture are Mike and Jen.

Jen is charged with sexual assault and a bond is set at $50,000.

If the fact pattern is left there, how do you feel?

The Relevant Sexual Assault Law in Texas

(a) A person commits an offense if:

(1) the person intentionally or knowingly:

(A) causes the penetration of the anus or sexual organ of another person by any means, without that person’s consent;

(B) causes the penetration of the mouth of another person by the sexual organ of the actor, without that person’s consent; or

(C) causes the sexual organ of another person, without that person’s consent, to contact or penetrate the mouth, anus, or sexual organ of another person, including the actor

A sexual assault is without the consent of the other person if:

(3) the other person has not consented and the actor knows the other person is unconscious or physically unable to resist; or

(5) the other person has not consented and the actor knows the other person is unaware that the sexual assault is occurring. Tex. Penal Code §22.011(b)(3), (5).

A Bit of Texas Legal History on the Subject

How did we get here in 2021? Was the law of rape and later sexual assault enacted to contemplate the type of fact pattern presented by the hypothetical? The obvious answer is, No. The proponents of the law articulated above as it applies to the fact pattern and who would insist that the case deserved to be tried and a jury should make the determination would state that the law has evolved as society has evolved and the prosecution of these types of offenses is long overdue. The opponents of the law articulated above as it applies to the fact pattern would state that this continues to be Government overreach into territory where it is almost impossible to prove a case like this beyond a reasonable doubt and this is a further push in a series of new laws and twists on old laws to pander and cater to special interest groups whose takes on the criminal law have gone way beyond the constructs of the original Penal Codes (see DWI Laws, Revenge Porn Laws, Family Violence Laws etc.).

Texas became a state in 1845 and had its boundaries set in its present form in 1850. After the Civil War, the civilian government wasn’t restored in Texas until 1866. Through a LEXIS search, it appears one of the first times the Supreme Court of Texas substantively considered a rape case was in 1867 in Clark v. State 30 Tex. 448 (1867).  By 1874, we can see how the Court considers what rape is an in offense in Davis v. State, 42 Tex. 226 (1874). The Court describes how the crime of rape must be defined. “It is unquestionably well settled that an indictment for this offense under the common law must contain the word “ravish.” To charge merely that the defendant “did carnally know,” etc., is not sufficient to support the indictment. The reason given for this is that, by the charge “did ravish,” force and violence by the man, and want of consent of the woman are implied…” (Additional citations omitted).

To further understand how far the pendulum has swung, also in 1874, the Supreme Court of Texas granted a new trial in a rape case deeming the evidence insufficient because the evidence was solely the testimony of a 21-year-old female with a three month delayed outcry of rape, “unsupported by other evidence and not corroborated by circumstances.” Topolanck v. State, 40 Tex. 160 (1874).

Continuing with the LEXIS search, we have to wait until the mid-1950’s before we first see the issue of rape of an unconscious female who had consumed wine (but there is no real mention of an intoxication level—just that she had wine and went to sleep.) The Court in that case found that the evidence supported the conviction. Collier v. State, 297 S.W.2d 160 (Ct Crim App 1957).

Finally, a LEXIS search leads us to a case much more on point with our topic in 2004. There, the Court of Appeals from Corpus Christi affirmed appellant’s conviction finding that the complaining witness’s unconscious, incoherent state on the evening of the assault was corroborated by several bar patrons, two police officers who found her in appellant’s apartment, two paramedics who treated her and the nurse who examined her.

Where Are We Now?

Texas remains a State where to find someone guilty of sexual assault, the State must prove beyond a reasonable doubt that a person causes the penetration of the anus or sexual organ of another person by any means, without that person’s consent. Texas has not changed its Penal Code to embrace the issue of Affirmative Consent as is now seen on numerous university campuses.

Examine an example of this from the webpage at The University of Tulsa:

The page states:

“Alcohol is considered the #1 “date rape drug”. However, it is important to understand that the only person to blame for sexual violence is the perpetrator. Regardless of how drunk or incapacitated a person may be, it is never their fault that they were assaulted.


REMINDER: Consent means a person has given voluntary permission to participate in a particular activity. Consensual sexual activity means that everyone involved has actively agreed to what they are doing, without being forced, coerced, or under the influence of alcohol and/or drugs. Without this active, verbal agreement, any sexual activity is considered sexual assault. A few things to know:

  • Yes means yes. Consent is not the absence of a no. It is the presence of a clear, affirmative, expression of interest, desire, and wants. Consent involves all parties, with each person setting their boundaries or sharing their desires. Consent is respectful, mutual decision-making.
  • Drugs and alcohol impact decision-making and blur consent. When drugs and alcohol are involved, clear consent cannot be obtained. An intoxicated person cannot give consent.
  • Consent needs to be clear. Consent is more than not hearing the word “no.” A partner saying nothing is not the same as a partner saying “yes.” Don’t rely on body language, past sexual interactions, or any other nonverbal cues. Never assume you have consent. Always be sure you have consent by asking.
  • Consent can be fun. Consent does not have to be something that “ruins the mood.” In fact, clear and enthusiastic consent can enhance sexual interactions. Not only does it allow one to know that their partner is comfortable with the interaction, it also lets both partners clearly express what they want.
  • Consent is specific. Just because someone consents to one set of actions and activities does not mean consent has been given for other sexual acts. Similarly, if a partner has given consent to sexual activity in the past, this does not apply to current or future interactions. Consent can initially be given and later be withdrawn.

(content attributed to the National Sexual Violence Resource Center”

State legislatures have now been toying with changing sexual assault statutes to change the lack of consent landscape to one of affirmative consent.

Examining the Tulsa website shows just how difficult it would be to change our laws to include affirmative consent. If “an intoxicated person cannot give consent,” how do we accord this with our search and seizure laws or our ability to gain confessions? In 2018, the Court of Appeals in Houston addressed the issue of whether an intoxicated person could consent to a blood draw. The Court reasoned that, “A person who is intoxicated may be capable of voluntary consent. Whether intoxication rendered the defendant incapable of making an independent, informed decision is a fact question.” English v. State, 2018 Tex. App. LEXIS 9242 at 13 (Tex. App.—Houston, 1st Dist. 2018). This logic significantly cuts against the edict that an intoxicated person cannot give consent to sex if they can consent to a search of the person’s own blood.

What Have We Created Now as a Society?

Anyone who watches football between September and February now knows what this is—a referee examining an on the field call in seemingly microscopic slow-motion detail to determine what occurred on the field at a much greater speed.

Did the player in the image above catch the ball? Did her cross the goal line? What was the ruling on the field? Is there incontrovertible visual evidence to be able to change the call on the field?

This is the backdrop and playing field where the criminal law practitioner who focuses on these cases now practices. We have taken the original definition of rape with the requirement of the “ravish” language and turned it into the possibility of a fact pattern that mirrors the one at the beginning of this document. So much of that happened in regular motion. Now we are going to attempt to slow it down and possibly label someone a sex offender for life in the process. This will be slowed down with potentially the testimony of 2 equally drunk individuals who will attempt to recount his/her version of the night from what he/she best remembers in his/her intoxicated state. Many purists believe that football is meant to be played on the field and it changes everything when the sport is broken down into slow motion. The same rings true for these cases. Where were her hands at this split second in time? Were they tugging at your shirt? Were they attempting to push you away? And what do either of those two movements fully mean? And…let’s face facts, the above scenario would never make it to a courtroom. Either the male would never accuse the female of sexual assault OR if he did, it would never make it past a police officer, detective or prosecutor. So, while our lawmakers push forward toward issues of equality, there really is no equality to be had in this portion of the system. When we hear the term “sexual assault,” we have a clear vision in our head of the gender of the perpetrator and of the complainant if presented with two people of the opposite sex. Which leads us to the issue of:

Voluntary Intoxication is No Defense

So now let’s reverse the genders in the fact pattern from the beginning. Both individuals are a .21. Can the law actually be that the female complainant can say that she has not consented and the male knows she was unconscious or physically unable to resist OR she has not consented and the actor knows the other person is unaware that the sexual assault is occurring? By Texas law’s black letter, the answer is absolutely. The case law supports it too and has supported it since at least as far back as 1872. Outlaw v. State, 35 Tex. 481 Tex. Sup. Ct. 1872). But, ask a prosecutor and that prosecutor will tell you that that very concept cuts against the average juror’s intrinsic fundamental fairness and despite taking an oath to follow the law, fundamental fairness generally wins out.

Bu,t lest this be seen as a diatribe of the changing landscape of this area of the law and how it has basically created something akin to the Salem Witch Trials, you came to Advanced Criminal Law to learn how to navigate this in your practice—so here it goes…

Tips for Prosecuting in the Area of Sexual Assault, Consent and Alcohol

Witnesses, witnesses, witnesses. Anyone who saw anything about the 2 individuals involved within about 12 hours of the alleged conduct (before and after) need to be found an interviewed. If you have them and are legally allowed to get them, go through every number of the accused’s phone records. If you have time, call the numbers the person communicated with. Were any admissions made? Did the accused admit to having sex but that it was consensual. Check contacts on social media. Did those contacts comment on what their friend just told them, etc.

Do not coddle your “victim.” Rather, be a good listener and be honest. Detectives and prosecutors want to rush to an accuser’s side and say the trauma they have suffered is so horrible and that they believe them and are there to advocate for them. They often do not ask difficult, probing questions up front, but rather leave that part for trial prep. Reverse that practice and you will not only save your case, but will be doing Justice, which is what you swore to do, in the process. Here’s what you have to keep in mind—you weren’t there. You received an accusation from a woman who says she was sexually assaulted. Your first inclination is to believe. What if the next sentence out of her mouth was that the perpetrator was Abraham Lincoln? That sort of changes things quite a bit. The bottom line is, we know absolutely nothing about this person or about the case when she reports it. I am not advising you embarrass her or cause her to feel ashamed or that she put herself in a bad situation. However, I am asking you to be blunt and honest. Tell her up front that you have a lot of probably embarrassing and probing, personal questions to ask her, but that the more detail she provides and the better she is able to hold up to the tough questions in the beginning, the better chance her case will have of being evaluated properly as to whether it can and should go to the next level of the process. She will appreciate you for the honesty much more in the end. It is much more favorable to having a “victim” coddled by we believe you language only to get to trial and be hit with details you had no idea about and then having to explain to her why the State lost the trial.

If the issue is that your victim was too intoxicated to consent, train your investigators to get a blood draw as soon as possible. It can give you the exact evidence you need and it will combat the defense question as to why they didn’t bother to draw the blood.

Tips for Defending in the Area of Sexual Assault, Consent and Alcohol

For those still a product of the old-school mentality addressing what the female was wearing, how many guys she was dancing with that night, etc., abandon that thought process and get yourself a second-chair who understands modern culture because that way of thinking is the fastest way to lose a case like this. Whether she’s lying or not, today’s juries will be completely turned off to even the slightest insinuation that she “was asking for it,” and you might as well have prepared your client for a lifetime sex offender registry because that is where he is headed if you embrace that thinking in today’s society. I didn’t think I’d have to cover that but in 23 years of practice I still have heard a few attorneys who want to explore that area. It’s almost a guaranteed loss.

Get an expert to address the area of blackouts if the complaining witness is alleging she blacked out after a certain period of time and doesn’t remember anything. An expert will be able to guide a jury through the differences between blacking out and passing out and explain to them how a person who experiences a black out can still perform functions that would indicate to a person that they are still functioning at a decent level—they are just not recording memories, and then be able to contrast this with someone who is passed out.

Get the jury talking in voir dire about their feelings about the scenario at the beginning of this document. Reverse the genders to make it seem more realistic. Don’t ask commitment questions such as could they convict under that fact pattern or would they convict under that fact pattern. Just get them talking about that situation and you will understand who thinks that situation is a fair one to have alleged sexual assault or not and why.

Do NOT allow their Sexual Assault Forensic Examiner to be their plus one witness. What do I mean by that? The State has a standard he said/she said case. They call their Sexual Assault Forensic Examiner to the stand to state that I examined her and took her history. While I didn’t find any trauma to the vaginal area, based on her reported history, this is consistent with sexual assault because we often find no trauma in these cases. Therefore, this is no longer a he said/ she said case, it’s a she said plus one case because we have one additional witness who will say this is consistent with sexual assault. Don’t fall for this—neutralize it quickly when the SAFE testifies. Ask the nurse, if you did not have a history, would this have been equivalent to having had a well check-up for a gynecological exam? So other then her word that she was sexually assaulted, which we already heard, you have nothing from a medical standpoint you can add at all to say she was sexually assaulted? No. Get off my stand 😊

Two last tips because I’ve far exceeded Twitter’s character limit—

Consider addressing the nonsense, especially if the case involves college students, that 1 in 5 college students are raped on campus. That is a paper for another day but if you want to explore this issue, I have articles which refute that study as well as the study itself. If you read the study—of the two schools they surveyed with under 50% of the people responding—you will se why it’s such a poor statistic and what is included as well in their definition of sexual assault.

Lastly, in voir dire and closing is a great time to bring back the presumption of innocence. If the case is truly a he said/she said case, if he is presumed innocent and she testifies and says He raped me and he testifies and says, No I didn’t, how does the State secure a conviction? They shouldn’t. They’ll say, but if you believe her…Really? How many times have you believed a colleague or a friend only to later realize you had been deceived—but you are willing to make that judgment call with a perfect stranger with no other physical evidence?

I leave you with this editorial from England where just as in the US and all other nations, they are grappling with how to handle this situation.

EDITORIAL Rape, Consent and Intoxication: A Legal Practitioner’s Perspective Joe Stone, QC*

The law recognizes the evidential problems of this area. In England, the lead case is R v Bree (2007) 2 Cr.App R 13. In that case, Sir Igor Judge pointed out that after the voluntary consumption of alcohol by autonomous adults, the critical question was whether the evidence proved that the defendant had sexual intercourse with the complainant without her consent. If the complainant consented, her consent could not be revoked. The phrase ‘drunken consent is still consent’ was said to lack delicacy in the context of sexual intercourse but, properly understood, provided a useful shorthand accurately encapsulating the legal position. It also acts as a reminder that a drunken intention to commit rape is still rape. He went on to state that it ‘would be unrealistic to endeavour to create some kind of grid system which would enable the answer to questions of capacity/consent to be related to some prescribed level of alcohol consumption. Experience shows that different individuals have a greater or lesser capacity to cope with alcohol than others and indeed the ability of a single individual to do so may vary from day to day. The practical reality is that there are some areas of human behaviour which are inapt for detailed legislative structures. In this context provisions intended to protect women from sexual assaults might be conflated into a system which would provide patronising interference with the rights of autonomous adults to make personal decisions for themselves. The problems do not arise from the legal principles. They lie with infinite circumstances of human behaviour and the consequent difficulties of proving this very serious offence’.

Alcohol and Alcoholism Vol. 48, No. 4, pp. 384–385, 2013


I hope this has helped. It’s challenging for all criminal practitioners as social media continues to fuel the need to change laws, remove judges or defund police on an almost daily basis and we sit there in the middle constantly trying to adapt our practices to changing laws and policies. The challenge now is that change happens so fast relative to how long it took years ago. I am still a firm believer that fundamental fairness prevails and if something seems unfair it probably is because it isn’t.

For any questions, my email address is:

Good luck out there!

Steve Brand


5900 Balcones Drive, Suite 260

Austin, TX 78731

P: (512) 494-4070


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