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How Drunk Is Too Drunk to Consent to Sex?


People who attend bars, nightclubs, and college parties are more than likely to have a drink or two. Or three or four. The point is, it is not surprising that these attendees typically go home intoxicated. Maybe they went home with the same people they arrived with, or maybe they met a “special someone” during their night out.

With this in mind, our attorneys are often asked, “Can I legally consent to sex while drunk?”

This question often concerns people, particularly young people in high school and college, because rape allegations have become increasingly common over the years. For context, 13% of all college students report experiencing rape or sexual assault through physical force, violence, or incapacitation, while nearly 1 in 5 women have been raped or experienced attempted rape during their lifetime.

As such, sexual assault is a widespread topic of conversation, not only at schools but also in the news, particularly since the #MeToo movement gained momentum. It is a common crime that can be committed unknowingly and unintentionally, causing many people to wonder if they can engage in sexual activity with an intoxicated person while intoxicated themselves.

This brings us to the question: “Can you legally consent to sex while drunk?” To answer this, take a look at N.J.S.2C:14-2 below.

According to this law, a defendant could get accused of aggravated sexual assault if they sexually penetrate a victim whom they knew or should have known was:

  • physically helpless or incapacitated,
  • intellectually or mentally incapacitated, or
  • had a mental disease or defect

which rendered the victim temporarily or permanently incapable of understanding the nature of the conduct, including, but not limited to, being incapable of providing consent. Aggravated sexual assault is a first-degree crime punishable by 25 years to life in prison.

What happens if a drunk person gives their consent despite being physically and/or mentally incapacitated temporarily? New Jersey Revised Statutes section 2C:2-10 answers this question.

Under the law, ineffective consent means a person cannot legally give consent if:

  • They are legally incompetent to authorize sexual activity
  • They are a person who, because of youth, mental disease or defect, or intoxication, is unable or known to be unable to make a reasonable judgment about the sexual activity
  • Such activity is induced by force, duress or deception of a kind

As you can see, a drunk person is legally not capable of giving consent in New Jersey. It is deemed ineffective. So, we encourage you to avoid engaging in sexual activity with an intoxicated person to best avoid getting accused of sexual assault. If convicted of this crime, you will go to jail, suffer fines, and be required to register as a sex offender, which could ruin your life.

If you have any questions, reach out to us online or at (201) 574-7919!

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