People often consume alcohol and drugs at parties. Intoxication causes people to lower their inhibitions and this leads to sexual advances. Colleges and universities are places where young people have large parties where binge-drinking is part of the culture. Nightclubs are another place where people drink alcohol and look for sexual partners. Date rape occurs if the two people are dating or are on a date when the rape occurs. Party rape is when sex occurs at a party and either one of the parties didn’t consent to it, whether or not they were intoxicated.

Is Having Sex While Drunk Illegal?

Mutual and consensual sexual advances are legal, but rape laws dictate that is illegal to have sex with someone who can’t consent. This includes people with mental illness, people under the age of 18, and people who have consumed too much alcohol to make decisions on their own behalf.
Several years ago, many states had different laws if the person had consumed alcohol by choice, but today, choice in terms of alcohol consumption is not a consideration. If someone has consumed alcohol to the point of intoxication, and someone else has sex with them against their will, it is considered rape, and it is illegal.

It is illegal to have sex with an unconscious person for the same reason: an unconscious person can’t consent. However, the victim does not need to be unconscious for the unconsensual act to be considered a rape in the eyes of the law and the courts. Being intoxicated, whether by choice or through being drugged by someone else, removes a person’s ability to consent.

What Defenses Are Available?

If one party is intoxicated, they cannot consent, so it is not an adequate defense to argue that both parties consented. If both parties are sober, however, mutual consent is a reasonable defense.
If both parties are drunk, the defendant may be able to use this fact in his or her favor while shaping a defense. There are other factors that could still make the defendant guilty of rape: if the plaintiff is a minor, if the plaintiff said “no,” or if the plaintiff wasn’t of age to legally drink.

Do I Need a Lawyer?

If you have been raped, or accused of rape, you need to have an experienced criminal attorney working on your behalf. You should contact a criminal lawyer immediately. There are severe consequences for rape and rape trials are notoriously complex and difficult processes for all parties involved. Legal counsel is essential for both parties in all rape cases.