Can a drunk person give consent?


          At Fialko Law, we have represented several clients (usually young men) charged with or accused of sexual assault after having a sexual encounter with an intoxicated person. Most often, our clients were intoxicated themselves. What is the law in North Carolina about intoxication and consent? Does it matter if the accused was intoxicated as well?

           In North Carolina, a person may be guilty of a crime such as sexual battery, forcible sex offense, or forcible rape, if he engages in a certain sexual act “by force and against the will of the other person” or engages in a certain sexual act with another person “who is mentally disabled, mentally incapacitated, or physically helpless and the person knows or should reasonably know that the other person is mentally disabled, mentally incapacitated, or physically helpless.”[1] Some might argue that a drunk person is mentally incapacitated and, therefore, cannot give consent. However, mental incapacitation means that “some act has been committed on the victim that leaves the victim incapable of appraising the nature of the conduct or resisting the act.”[2] North Carolina courts have specifically held that “[a] person is not mentally incapacitated when he or she is responsible for the incapacitation (for example, by voluntarily ingesting alcohol).”[3] Therefore, under North Carolina law, a person who voluntarily drinks is still able to give consent. In contrast, an involuntarily incapacitated person cannot consent. Someone might be involuntarily incapacitated if, for example, another person slips a pill in his or her drink.  

           A person voluntarily intoxicated to the point of being unable to resist may, however, be “physically helpless” and, therefore, unable to consent.[4] “‘Physically helpless’ means that the victim is unconscious or physically unable to resist the act or to communicate an unwillingness to submit.”[5]

           In sum, the accused is not guilty of sexual assault for simply engaging in a consensual sexual act with a voluntarily intoxicated person. For the accused to be guilty, the other person must be either involuntarily incapacitated or voluntarily incapacitated to the point of physical helplessness.

           Now to the second question: What if the accused person was also intoxicated? As noted above, the law requires that the accused must have known or should have reasonably known that the other person was mentally incapacitated. Therefore, the accused person’s intoxication level could certainly prove relevant to whether he could understand the other person’s mental capacity.   

           If you are accused of sexual assault, contact us for a free consultation. It is important to get an attorney as soon as possible, even if no charges have been filed.


[1] Jessica Smith, North Carolina Crimes: A guidebook on the Elements of Crimes, 255 (7th Ed. 2012).

[2] NC Crimes at 224 (citing N.C.G.S. 14-27.1(2)) (emphasis added).

[3] Id (citing State v. Haddock, 191 N.C. App. 474, 481-84 (2008)).

[4] Id (citing State v. Aiken, 73 N.C.  App. 487 (1985)).

[5] Id (citing G.S. 14-27.1(3)).