Can You Be Charged with Sexual Assault if the Other Person Has Been Drinking?

A significant percentage of sexual assault cases in Texas involve allegations that the complainant was intoxicated at the time of the sexual encounter and was therefore unable to consent. These cases are among the most factually complex in criminal law because they involve competing narratives about what happened during an encounter where both parties may have been drinking, memories may be impaired, and the line between consent and incapacity is not always clear.

At Deandra Grant Law, Attorney Douglas Huff has defended numerous alcohol-involved sexual assault cases. Doug understands the science of alcohol’s effects on memory and cognition, the legal standard for incapacity in Texas, and the defense strategies that are most effective in these factually complicated cases.

When Intoxication Negates Consent Under Texas Law

Texas Penal Code §22.011(b)(3) provides that a sexual assault occurs when the actor knows that the other person is “unconscious or physically unable to resist.” Section 22.011(b)(4) covers situations where the actor knows that the complainant is “unaware that the sexual assault is occurring.”

Additionally, §22.011(b)(6) addresses situations where the actor has “intentionally impaired the other person’s power to appraise or control the other person’s conduct by administering any substance without the other person’s knowledge.” This provision specifically targets drugging scenarios.

What the law does not say is that any degree of intoxication negates consent. A person who has been drinking is not automatically incapable of consenting to sexual activity. The legal question is whether the complainant was so intoxicated that they were physically unable to resist, unconscious, or unaware that the sexual assault was occurring. This is a significantly higher bar than simply “drunk.”

How Prosecutors Build Alcohol-Related Cases

Despite the specific statutory language, prosecutors frequently present alcohol-involved sexual assault cases in a way that suggests any significant intoxication equals inability to consent. Common prosecution strategies include:

• Testimony about the volume of alcohol consumed. The prosecution presents evidence that the complainant consumed a large quantity of alcohol, creating an impression of severe intoxication.
• Witness testimony about observed behavior. Friends, bartenders, and other witnesses describe the complainant as stumbling, slurring speech, or appearing heavily intoxicated.
• Memory gaps as evidence of incapacity. The prosecution argues that the complainant’s inability to remember the sexual encounter proves they were incapable of consenting to it.
• SANE exam findings. The prosecution presents physical findings from the SANE exam as evidence of assault, even when those findings are equally consistent with consensual activity.

Defense Strategies in Alcohol-Involved Cases

• Challenging the level of intoxication. Doug examines all available evidence which may include surveillance video, witness testimony and the complainant’s own communications during the relevant time period to establish the complainant’s actual level of functioning. A person who was texting coherently, walking without assistance, and making decisions about where to go and what to do may have been drinking but was not incapacitated.
• The science of alcohol and memory. Doug retains experts in pharmacology and memory science to explain the difference between alcohol-induced blackout (in which a person is conscious and functioning but does not form long-term memories) and incapacity. A person experiencing a blackout may have appeared fully conscious and participatory during the encounter, and their later inability to remember does not mean they were incapable of consenting at the time.
• Consent evidence. Text messages, social media communications, and witness observations before and after the encounter can establish that the complainant initiated or actively participated in the sexual activity.
• The defendant’s intoxication. When both parties were drinking, the defendant’s perception of the complainant’s condition is relevant. If the defendant was also intoxicated, their ability to perceive the complainant’s level of impairment may have been compromised — which is relevant to the “knowingly” element of the offense.

Doug’s ACS-CHAL Forensic Lawyer-Scientist credentials give him the scientific foundation to challenge the prosecution’s characterization of alcohol’s effects and present the jury with an accurate understanding of how intoxication actually works.

Contact Deandra Grant Law

If you or someone you love is facing a sex crime accusation in Texas, contact Deandra Grant Law for a free, confidential consultation with Attorney Douglas Huff. Doug is a Partner at Deandra Grant Law and a senior trial attorney who has defended clients against sexual assault allegations, violent felonies, and other serious criminal charges throughout his career. He holds the ACS-CHAL Forensic Lawyer-Scientist designation and has been recognized as a published author and national lecturer on criminal defense strategy.