What if the Accuser is Claiming they were Intoxicated or Incapacitated?

When people think of what really transpires on a college campus, some people may envision lecture halls filled with students who are eager to learn. While others picture wild college parties that involve underage drinking and late nights. Despite one's perception of higher education institutions and how students operate within them, the reality is that college can be both of these things simultaneously. Many students work hard in regard to finishing assignments and getting good grades, and they play hard by occasionally partying and having a good time.

In recent years, a large number of cases consist of an accuser who claims that a sexual encounter was not consensual due to the fact that they were too intoxicated and unable to consent. These cases are complex and difficult to resolve. The reason being so is due to the small distinction between an accuser being intoxicated and incapacitated.

Intoxication vs. Incapacitation

The thin line between intoxication and incapacitation is one that is not completely understood in criminal courts, let alone a campus panel in a proceeding. As of now, there a few general common understandings of what being intoxicated and incapacitated entails:

If school authorities conclude that a person was incapacitated - the physical and/or mental inability to make rational judgments - when a sexual assault occurred, this means that they could not consent to engage in sexual activity. A person can become incapacitated when he or she is asleep, has an intellectual disability or uses drugs or alcohol. If a sexual assault case arises when an accuser is drunk, the conclusion lies in whether the accuser was drunk to the point that they didn't know what they were doing, or if their judgment was simply impaired.

In cases when an accuser is drunk, a respondent must do their best to draw the line between alcohol-impaired judgment and incapacitation as clearly as possible. In other words, the accused must prove that an accuser may have been drinking, but he or she was not drunk to the extent that he or she did not know what they were doing. Trying to do this yourself will most likely be tricky. However, an experienced attorney could offer you advice as to how to clearly communicate this distinction to school authorities.

If you have been accused of sexual assault, here are a few tips to consider when attempting to defend yourself in sexual assault cases involve alcohol:

Find Witnesses

Firstly, you should find witnesses that are able to give their own personal account of how you and your accuser were acting around the time of the perceived incident. However, the more dramatic the testimony, the more guilty you are perceived to be. For example, if a witness testifies that an accuser vomited at any point of consuming alcohol during the time of an incident, a school's decision may not be made in your favor. Contrastingly, if witnesses claim that you both seemed fine, their testimony could be beneficial to your case.

Defending Yourself

Most students take it upon themselves to defend themselves in either one of two fashions: by saying that the accused initiated sexual contact, or by saying that they were also incapacitated. Both of these arguments are natural and may make sense to respondents. But it's important to have a clear and concise understanding of what a campus panel will most likely conclude.

When you base your defense solely on the fact that your accuser initiated the sexual activity, it is risky. A panel could easily disregard these indicators of consent if they conclude that the accuser was incapacitated. While arguing that you were also incapacitated could serve as a violation of disciplinary

codes and be perceived as retaliation. Despite these seemingly valid defenses, the most important point to argue is that your accuser was intoxicated, not incapacitated.

Experienced Defense Attorney

If you have been accused of sexual assault on a college campus, you should consult with a skilled attorney who is dedicated to protecting your rights. Contact attorney Joseph D. Lento today at 888-535-3686.

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If you, or your student, are facing any kind of disciplinary action, or other negative academic sanction, and are having feelings of uncertainty and anxiety for what the future may hold, contact the Lento Law Firm today, and let us help secure your academic career.

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