Attorney Richard L. Lougee Writing on a Document


Richard L. Lougee Sept. 1, 2017

       In part because of the Start By Believing movement (discussed elsewhere on this website), the number of sexual assault cases has increased significantly in the past decade. Especially on college campuses, the sexual event giving rise to administrative and criminal proceedings has been almost always connected to alcohol. Here’s how problems arise:

       When two adult acquaintances have sex, one later alleges rape, and the accused affirmatively defends himself with evidence of consent, standard sexual assault provisions become extremely problematic for juries to apply. These problems are magnified when both the accuser and accused have been voluntarily drinking together in a social situation, the accuser does not claim to have been rendered unconscious by her alcohol consumption, and the prosecution – unrestricted by any limiting jury instructions – strenuously argues the victim was “incapable of consent by reason of alcohol.” 

       In a recent case in Pima County, a jury convicted the defendant of sexual assault after the State forcefully argued not only that his accuser could not consent due to alcohol, but also that the trial court should not further define “incapable of consent by reason of alcohol.” However, neither the governing statute nor the trial court in its instructions provided any standard to differentiate (1) consensual sexual contact where the accuser’s intentional alcohol consumption may have modified her judgment, from (2) sexual assault on a victim rendered incapable of consent by alcohol. Defense counsel argued the statute did not provide notice to the defendant (or any of the millions of Arizonans who attend social functions where alcohol is served) that having sex with someone who has had any alcohol at all to drink may be a felony.

     Had this been the sort of case where all the evidence pointed to the victim drinking to the point of unconsciousness prior to the sex act, then the trial court’s standard instructions tracking the statute would have sufficed. But in a case where the evidence arguably demonstrated: (1) two adults, (2) very accustomed to drinking alcohol, (3) who demonstrated a mutual sexual attraction to one another over the course of an evening, (4) all the while consciously performing myriad motor functions, and (5) having coherent conversations among themselves and with others, before engaging in a sex act, defense counsel argued Arizona’s sexual assault statute was unconstitutionally vague without a clarifying jury instruction.

     On appeal the defendant raised the following issues for review:

  1. Arizona’s sexual assault statute prohibits sexual intercourse or oral sexual contact with any person “incapable of consent by reason of alcohol,” but neither the statute nor case law interpreting it provides any definition whatsoever of “incapable of consent by reason of alcohol.” Is this provision , which fails to give notice of when sexual conduct is prohibited with a person who has been drinking unconstitutionally vague?

  2. In a sexual assault prosecution where the sole defense was consent, the drinking victim described herself to police as “tipsy,” not “falling down drunk,” and displayed various sings of relative sobriety – including walking up and down stairs, posing for photographs, and driving a car – did the trial court abuse its discretion by refusing multiple defense requests to define “incapable of consent by reason of alcohol?”

In the case of State v. Causbie, 241 Ariz. 173 (C.A. Div. 2, 2016) the Court found “tipsy” to constitute a level of intoxication vitiating consent. The matter is currently pending a petition for review to the Arizona Supreme Court. Regardless of the result before the state courts, defense counsel confronted with a similar situation should always raise the state and federal constitutional infirmities of the statute.

If you have been accused of rape, especially if alcohol was involved, you need an experienced attorney.  Call The Law Office of Richard L. Lougee today for a free consultation.