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Drug Use, Alcohol Intoxication, Blackouts, and Consent

Oct. 12, 2020

According to the U.S. Department of Justice, in 2018, there were an estimated 734,630 sexual assault or rape incidents in the United States. Sexual misconduct allegations are serious and could cause devastating, long-lasting consequences to your quality of life, reputation, and your personal and professional future. In reality, many alleged cases of sexual assault are two consensual college-aged students having sex. However, one of them regrets the act later on and wants to be smart about avoiding improper behavior. If you are facing sexual assault charges, having the right legal representation is crucial.

For more than 25 years, I have been helping students and faculty members at UCLA, California Institute of Technology and other educational institutions in California defend themselves against sexual misconduct, rape, and sexual assault accusations. As your legal counsel, I will offer you the experienced legal guidance and aggressive representation you need in your sexual misconduct case. I proudly serve clients throughout Los Angeles, California, and the surrounding areas of Santa Barbara, Ventura, and Orange counties.

What Is A Blackout?

A blackout can be described as a temporary loss of memory due to alcohol intoxication or excessive drug use. Blackouts occur when the alcohol or drug use levels of your body are high. Thus, your memory is temporarily affected, and there is a sense of lost time.

While a person is in a blackout state, they may seem fully conscious. However, they are not storing memories or are only storing fragmented memories of whatever they are experiencing, doing, or saying during their brief period of a blackout. Once they recover from the blackout, they have no memory or only sporadic memory of what happened.

Blackouts and Consent

According to a survey, approximately 50% of college students who consume alcohol reported that they experienced an alcohol-induced blackout at some point.

If such a person was involved in sexual activity during the blackout period, they may not remember or have only fragmentary memory of giving consent to sexual activity and actively participating in sexual activity. This can lead to the disbelief that they gave consent, and they may end up accusing the other party of sexual assault or rape.

Types of Blackouts

Blackouts are generally categorized as "en bloc" blackouts or "fragmentary" blackouts.

  • En Bloc Blackouts: En bloc blackouts occur when the person is unable to recollect any memories from the intoxication period. They are able to have a conversation or even manage to engage in sexual activity. However, they don't have an actual memory of what happened.

  • Fragmentary Blackouts: Fragmentary blackouts occur when a person is able to recall certain events that happened during the intoxication period, but are unaware of other missing memories unless they are reminded.

Consent Under California Law

The state of California uses the "affirmative consent" standard. Under California law, affirmative consent means affirmative, conscious, and voluntary agreement to participate in sexual activity. Before engaging in any sexual activity, it is the responsibility of each person involved to ensure that he or she has the affirmative consent of the other party or parties.

How Does Intoxication Affect Consent?

A person who is temporarily incapable of controlling his or her conduct due to an intoxicating or controlled substance is considered "mentally incapacitated" and unable to give consent. Pursuant to California Penal Code § 261(a)(3), the accused may be guilty of rape for engaging in sexual intercourse with a person who is unable to resist due to any intoxicating or controlled substance, and the accused had reason to know about such condition.

Not Actual Consent

During an alcohol-induced blackout, a person may be presenting as fully conscious, but in fact, they aren’t aware of what is happening. They may do or say things that appear to be consent to sexual activity. However, this is not actual consent. The person is not totally aware of what they are doing during the period and may have fragmentary or no memory of what actually happened.

When You Need a
Criminal Defense Attorney

Sexual misconduct or rape allegations can cause irrevocable damage to your quality of life, reputation, liberty, education, and future opportunities. When defending a sexual assault charge, it is crucial to have a defense strategy that fits your particular situation.

I am committed to defending individuals, including students and faculty members of educational institutions across California, facing sexual misconduct or rape charges. As an experienced California criminal defense attorney, I will review every detail of your case, conduct a thorough investigation, and strategize your defense.

As your legal counsel, I will fight aggressively on your side to protect your rights and disprove the charges against you with substantial evidence. I will do everything within my capacity to establish your innocence and ensure that these accusations don't ruin your education or career.

Contact the Alec Rose Law Office today to schedule a one-on-one case assessment with a knowledgeable California criminal defense attorney. I will offer you the experienced legal guidance and strong representation you need. I'm proud to serve clients throughout Los Angeles, Santa Barbara, Ventura, San Diego, San Bernardino, and Orange, counties in California.