Yes, you can be charged with sexual assault in Ohio if both parties were drunk, especially if one person was too impaired to give legal consent. Alcohol-related sexual assault cases are complex and highly fact-specific.
If you or a loved one is facing this kind of accusation, our rape defense lawyers in Cleveland will guide you through the legal process, protect your rights, and fight for your future. These charges carry serious consequences, and you shouldn’t face them without legal representation.
Understanding What Ohio Law Says About Consent
Consent is the key issue in any sexual assault case. Under Ohio law, someone cannot give legal consent if they are substantially impaired, whether by alcohol, drugs, or another condition.
According to Ohio Revised Code § 2907.02, it is rape to engage in sexual conduct with someone who is substantially impaired because of a mental or physical condition (including intoxication) if the accused knows or should know about the impairment.
This means that if someone is too drunk to think clearly or say yes or no, any sexual contact could be considered non-consensual, even if both people had consumed alcohol.
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What if Both People Were Drinking?
If both parties are drunk when an incident occurs, determining consent can be challenging. However, the law doesn’t automatically cancel out consent because both people were intoxicated.
Instead, the courts will look at:
- Who was more impaired
- Whether one person took advantage of the other’s state
- If anyone blacked out, passed out, or couldn’t communicate clearly
- What each person remembers about the incident
- If there’s any physical or digital evidence (texts, social media, etc.)
How Ohio Courts View Alcohol and Consent
Ohio prosecutors often focus on whether one party was substantially impaired at the time of the incident. Even if both people were drinking, one person might be considered a victim under the law if:
- They were passed out, vomiting, or falling down.
- They could not remember what happened.
- Witnesses noticed they couldn’t walk or talk properly.
- The accused appeared more aware or in control.
In these cases, the more intoxicated person might be seen as unable to consent, and the other person—regardless of their level of impairment—could be charged with a sex crime.
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Possible Charges You Could Face
If you are accused of sexual assault after a night of drinking, you could be charged with one or more felony sex offenses. Each charge has its own definition and penalties under Ohio law:
Rape
Rape is a first–degree felony. It includes sexual conduct with a person who is:
- Substantially impaired and unable to consent,
- Or forced or threatened into the act.
Penalties include:
- Up to 11 years in prison (or more, depending on the facts)
- Registration as a sex offender
- Possible lifetime supervision
If you’re facing this charge, our criminal defense lawyers in Cleveland will fight to protect your freedom and reputation.
Sexual Battery
Sexual battery (Ohio Revised Code § 2907.03) happens when someone has sexual contact with another person who can’t give consent because they are drunk, on drugs, or otherwise impaired, and the offender knows it.
Penalties:
- It is a third–degree felony, but punishment depends on how the offense is classified:
- Low–tier: Up to 36 months in prison
- High–tier: Up to 60 months (five years) in prison
- Mandatory sex offender registration.
Our Cleveland rape attorneys can examine all aspects of the case to build the strongest possible defense.
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Will the Prosecutor Consider Whether Both People Were Drinking?
Yes, they will take into account that both people were drinking. Prosecutors will look at all facts in a case, including:
- Both parties’ blood alcohol concentration (BAC) levels if tested
- Witness statements about who seemed more impaired
- Any video surveillance or smartphone footage
- Texts, calls, or social media posts from before and after
Prosecutors can still bring charges if they believe one person couldn’t legally consent. Even if one party didn’t mean to hurt anyone, intent is not always required under Ohio law when a case involves impairment.
Can You Be Convicted if You Were Also Drunk?
Yes, you can be convicted of charges if you were intoxicated. In Ohio, being drunk is not a defense to claims of sexual assault or sexual battery.
You can still be found guilty, even if you were drunk, too, if the prosecution proves the following:
- The other person was too impaired to consent.
- You should have known that at the time.
Defending Yourself in a “Both of Us Were Drunk” Case
Every case is unique, and your defense should reflect that. Our sex crimes lawyer in Cleveland will look at:
- Whether the other person was actually impaired under the law.
- Whether there was clear, verbal, or non-verbal consent.
- Whether evidence exists that supports your version of events.
- Whether the accusation was made after a disagreement, regret, or outside pressure.
Our Cleveland rape lawyers will also look into whether your rights were violated during the investigation or arrest. These cases are serious, but they are also defensible.
What to Do if You Are Facing Charges in a Sexual Assault Case
If you’ve been accused of sexual assault where both parties were drinking:
- Do not talk to police without an attorney present: Anything you say can be used against you, even if you think you’re helping yourself.
- Do not contact the alleged victim: This could hurt your case and lead to more charges, like witness intimidation.
- Do not share anything on social media: Posts, photos, or messages can be taken out of context and used as evidence.
- Get legal help now: We will listen, guide you, and fight to protect your future.
These charges can change your life. They can result in prison time, sex offender registration, and damage to your career and relationships. You deserve a skilled legal defense from a team that knows how to handle these tough situations.
Related Charges That May Also Apply in This Type of Case
Depending on the facts, prosecutors may also charge the following in a case involving impairment:
- Gross sexual imposition: This involves touching someone sexually without consent.
- Unlawful sexual conduct with a minor: Even if the encounter was consensual, this charge can still apply if the other person is underage.
Each of these offenses carries different penalties, but all are serious and require experienced legal help.
Our Cleveland Defense Team Will Fight for You — Call Us
A sexual assault charge can carry life-changing consequences, especially when both parties were drinking. These cases move quickly, and the details can be hard to untangle. Your name, freedom, and future are on the line, which is why getting legal help right away matters.
For over 20 years, HMW Law—Ohio Trial Attorneys has fought tirelessly for Ohioans. With more than 60 years of combined experience, our Cleveland rape lawyers focus solely on serious charges like rape and sexual battery. We bring skill, compassion, and deep commitment to every case.
We’re selective about the cases we handle because we believe every client deserves personal attention. You won’t be left in the dark. That’s our promise. Damn Right, We Fight!™ Call us now for a free consultation. We will explain your rights and help you take the first step forward.
Call or text 216-774-0000 or complete a Free Case Evaluation form