A person cannot give legal consent if they are substantially impaired to such an extent that they cannot understand the nature of the act or physically control their body.
Intoxication alone doesn’t make someone incapable of consenting to sexual activity, but a person cannot consent if they are incapacitated by alcohol or drugs.
Consent is a thorny and complex legal issue, and cases involving conflicting accounts of consent are difficult to investigate due to inherent ambiguities in human relationships and sexual activity.
What matters is that consent is highly context-dependent, and cases deserve full attention and investigation. A Cleveland criminal defense lawyer can provide clarity on matters related to consent and alcohol consumption.
How Does Ohio Define Consent?
Ohio defines consent as words and acts given by a competent person indicating they are freely agreeing to sexual conduct. Consent is not something singular but ongoing; it must be sustained throughout the sexual interaction, and it can be freely withdrawn at any time.
Consent can be confirmed or denied verbally (“yes” or “no”), but verbal communication alone may not be sufficient to establish consent.
In the context of Ohio criminal law, the following do not constitute evidence of consent:
- Silence or lack of physical resistance
- The existence of a prior dating or sexual relationship
- Previous text messages or flirtatious behavior
- Friends’ beliefs about typical behaviors
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A Person Cannot Give Consent if They Are Substantially Impaired
In Ohio, a person cannot give consent if they are impaired by alcohol to such a degree that they cannot understand the nature of the act or lack control of their physical body. In other words, a person cannot consent if they are so drunk that they can’t understand or physically control their behavior.
Substantial impairment is not the same as intoxication. Someone can be intoxicated yet still retain control of their faculties such that they can understand, appraise, and control their own conduct.
Substantial impairment could include:
- Being unconscious or asleep from intoxication
- Loss of motor control or difficulty walking
- Vomiting or incontinence
- Slurred speech and erratic behavior
- Disorientation or confusion
There is no one-size-fits-all account of consent that applies in every case. Rather, determinations are made on a case-by-case basis by assessing the context and facts of the situation.
Potential Criminal Charges for Non-Consensual Sex
When someone is accused of engaging in non-consensual sexual conduct, they can face criminal charges, such as:
- Rape: A person can be charged with rape if they have sex with someone who they know is too drunk to consent. Rape is a first-degree felony that can carry between 3 and 11 years in prison, but it can also carry life in prison under aggravating circumstances, according to ORC 2907.02.
- Sexual battery: Sexual battery consists of knowingly taking advantage of someone who is incapable of consenting to engage in sexual conduct. Sexual battery is a third-degree felony that can carry up to three years in prison. It can be charged as a second-degree felony if the victim is under 13.
- Gross sexual imposition: Gross sexual imposition involves engaging in non-consensual sexual conduct (e.g., touching, fondling, etc.) when a person is incapable of assenting. It is a fourth-degree felony that can carry up to 18 months in prison.
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What if Both Parties Were Drunk?
A common question we receive is: What if both parties were drinking and had sex? Can you be charged with sexual assault if both parties were drunk?
In these kinds of cases, what matters is the difference in the degree of intoxication of the two parties. Even if both parties were drinking, it still may be sexual assault if one party was substantially impaired and drunker than the other. Even if there wasn’t an intent to hurt anyone, you can still be charged with a crime.
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How to Determine Consent in Disputes
It can be extraordinarily difficult to adjudicate disputes about consent and alcohol use. There tends to be very little evidence, and the intensely personal nature of investigations means cases often involve high emotional tension.
To determine whether consent was given, a court will look at several relevant factors, such as:
- Statements from the accuser and the accused
- Interviews with eyewitnesses
- Text messages, phone calls, emails, and GPS data
- Forensic or medical evidence (if it exists)
- Video footage or recordings (e.g., cell phone footage, CCTV, etc.)
What happens in these cases is that a defense attorney builds a timeline and narrative of the events based on the evidence. The goal is to provide an objective and impartial account that includes relevant contextual details for jury deliberation.
Contact a Criminal Defense Lawyer in Ohio Today
Whether or not someone can legally consent after drinking in Ohio depends heavily on the specifics of the case. If you have more questions about Ohio’s laws regarding consent and alcohol consumption, contact HMW Law—Ohio Trial Attorneys to schedule a consultation.
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