Capital Region Legal News

Thursday, October 22, 2015

Defining Sexual Assault When Alcohol is Involved

What constitutes sexual assault when one or both parties are intoxicated?

There is a great deal of confusion surrounding the definition of sexual assault and since nearly 25 percent of undergraduate women report having been sexually assaulted, it is clearly time to clarify. First of all, consensual sex means that consent has been given freely, without any threat of force or intimidation, and consent must be actively given. The absence of "no" does not mean "yes."  It is important that both parties in a sexual encounter are aware that, under New York State law, a person cannot consent to sexual activity if that person is under the age of 17, is developmentally disabled, or is mentally or physically incapacitated due to intake of alcohol or drugs.

The following list, put together by Cornell University, is a good starting point for understanding the responsibility one has when engaging in sexual contact:

  • All sexual contact requires consent

If a person is intoxicated to the point that he or she cannot consent due to incapacity, it is assumed that legal consent has not been given.

  • There are a number of ways to withhold consent

If a person says he or she doesn't want to have sex, just want to cuddle or go to sleep, further sexual contact with that person can be interpreted as assault. Similarly, body language, such as turning away or pushing the other person away is considered a barrier to consensual sex.

  • Never presume consent

It is always best to communicate fully with a potential sexual partner and to determine verbally what each person is expecting from the encounter. Be aware that the complainant will usually  have the advantage over the initiator of supposedly unwanted or ambiguous sexual contact. Be cautious about overstepping boundaries.

  • Consenting to one activity does not mean consent for all activities

Never presume that acquiescence to one stage of contact implies approval of all further sexual activity. If a person agrees to sexual touching, it does not mean the individual is agreeing to intercourse.

  • Inability to consent due to intoxication means "NO"

If you have been charged with sexual assault on a college campus or elsewhere in the eastern upstate New York region, you would be wise to contact one of our skilled criminal defense attorneys at Ianniello Anderson. We can be reached at 518.350.7755.

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