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Alcohol and Consent: How Drunk is Too Drunk?

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Does alcohol affect consent?

In a word, yes. However, the level of intoxication or incapicitation as a result of alcohol is really what affects consent. In Louisiana, you can be charged with third-degree rape if the victim's level of intoxication was past that of resisting or understanding the imminence of the sexual act and the offender know or should have known the victim's level of intoxication. The concept of consent is not just a social push for justice; it's necessary to avoid a chargable offense.

How does Louisiana define consent?

Louisiana doesn't necessarily define consent; however, Louisiana statutes LA 14:42, 14:42.1, and 14:43 all provide what situations and instances make rape a chargeable offense. When it comes to intoxication (and the victim is responsible for their own intoxication), consent is only defined by LA RS 14:43.

The third-degree rape statute states that consent cannot be given if "the victim is incapable of resisting or of understanding the nature of the act by reason of a stupor or abnormal condition of mind produced by an intoxicating agent or any cause and the offender knew or should have known of the victim's incapacity." This means that "consent" given when someone is incapacited is not actually consent at all and the offender can be charged and convicted with third-degree rape as a result.

Clear, voluntary consent is always required before engaging in sexual activity, and it is your responsibility to receive that prior to any sexual action. If there is any reason to believe that the person you're attempting to engage in sexual activity with is incapable of giving legal consent for any reason, it's best to call it a night and not engage in the act to any extent.

We advise that you review these statutes to understand the breadth of situations and circumstances that are considered unlawful sexual activities in the state of Louisiana.

What are the consequences of rape in Louisiana?

Third-degree rape convictions carry a consequence of hard labor imprisonment for up to 25 years without parole, probation, or suspension of sentence. A second-degree rape conviction also carries hard labor imprisonment, but for at least five years and up to 40 years, at least two of which without parole, probation, or suspension of sentence.

First degree rape convictions require a hard labor life sentence without parole, probation, or suspension of sentence. If the victim was under the age of 13, the DA may seek the death penalty.

An Experienced Attorney is Critical

If you've been charged with rape in Louisiana, an experienced attorney is critical for your defense. Call us today to schedule a consultation with Kevin Stockstill.

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