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Court Rules that Intoxication Made Victim Unable to Consent


November 2, 2019

The Georgia Court of Appeals held that a victim's voluntary intoxication was sufficient to render her unable to consent to the defendant's act constituting aggravated sexual battery.

In Johnson v. State, the defendant was drinking with his ex-wife and her friend. The three of them became intoxicated and at some point the defendant penetrated the friend’s vagina with his finger. He contended that it was a consensual encounter that occurred while they were lying next to each other on a waterbed. She claimed that she was so intoxicated that she became unconscious only to wake up to him rubbing her back and then her vaginal area.

According to the defendant, when he inserted his finger into the victim’s vagina, he believed it was consensual as she was conscious and had earlier responded positively to his advances “by arching her back to make herself more accessible.” However, the victim testified that, while her initial response was that it felt good, she was “so out of it” and “didn’t know what was going on at first.” She stated that when she became fully conscious, she realized what was happening and no longer wanted him to continue.

The Court of Appeals noted at the outset that whether a victim consented to sexual activity is solely a matter for the jury to decide. It was stressed that while a defendant is not required to know what is going on inside the victim’s head, he may not intentionally engage in sexual conduct with her without her free consent.

The Court pointed out that a majority of states in this country will not criminalize a defendant’s conduct in this regard when a victim has become voluntarily intoxicated by drugs or alcohol. However, Georgia is not such a state.

With respect to rape prosecutions in Georgia, the law provides that when a victim is “intoxicated, drugged, or mentally incompetent” and her “will is temporarily lost from intoxication or unconsciousness arising from the use of drugs or other cause,” she is “physically or mentally unable to give consent to the act” of sexual intercourse. The Court held that this same principle should also apply to sexual battery cases.

The Court concluded that the State presented sufficient evidence to authorize the jury to find that the victim was intoxicated to the extent that her will was temporarily lost. In support of this, it was pointed out that the victim had vomited, needed assistance to walk, and lost consciousness at one point.

Therefore, in light of her level of intoxication, the Court held that a reasonable jury could determine that she was unable to consent to the defendant’s act of penetrating her vagina with his finger. As a result, the Court affirmed the defendant’s conviction for aggravated sexual battery.

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