Rape, Intoxication and Consent

In two cases decided last Friday, the Supreme Judicial Court clarified requirements for proof in rape cases in which lack of consent due to intoxication is an issue.

In Comm. v. Blache, the court ruled that jury instructions should clearly explain the following two requirements:

1. that the intoxication rendered the complainant incapable of consent. Jury instructions must make clear that "for the Commonwealth to meet its burden of proof on the complainant's nonconsent by establishing that she was incapable of consenting, the Commonwealth must show not simply that she lacked sobriety or was intoxicated, but that as a result of the alcohol and drugs she consumed, the complainant's physical or mental condition was so impaired that she could not consent."
2. that the defendant "knew or reasonably should have known that the complainant's condition rendered her incapable of consenting." This second element is a new requirement, and the court ruled that "we will not give the new rule retroactive effect, but apply it solely to trials occurring after the issuance of the rescript in this case."

In Comm. v. Urban the court held that "The instruction in this case, like the instruction in Blache, failed to clarify that an extreme degree of intoxication is required before the incapacity rule will apply...The risk is too great that they may have interpreted it to mean that a finding of intoxication of any degree, like a finding of unconsciousness, for example, vitiates consent as a matter of law."

More information and links to laws and other cases can be found at Mass. Law About Rape and Sexual Assault.