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I read some your posts about these thing but I still wonder what the law is in Massachusetts when the girl who says she was raped was drunk or on drugs. Does that mean if the girl was drunk then that is a defense to rape charges? Thank you for you help.

Editor's Response

Absolutely not. Consent can be a defense to rape, and the issue of intoxication or drug use is relevant to whether the victim was capable of giving consent. One of the most important cases on this subject is Commonwealth v.  Blache (450 Mass. 583).    The Blache case discusses the question of, when a defendant raises the defense of consent in a case where there is evidence of intoxication or the use of drugs, what must the state prove.  The Court held (citing other cases) that:
 
The law does not require that the complainant have been rendered "unconscious or nearly so" before she may be deemed past the point of consent. We conclude that an instruction concerning capacity to consent should be given in any case where the evidence would support a finding that because of the consumption of drugs or alcohol or for some other reason (for example, sleep, unconsciousness, mental retardation, or helplessness), the complainant was so impaired as to be incapable of consenting to intercourse.
 
So, if the state carries its burden on the question of consent, (by showing that the victim was incapable of consent)it must then prove the other elements of rape under Massachusetts law (intercourse, force or threat of force, etc.).   For more information or to post a question, visit our Massachusetts Criminal Law Discussion Forum.
 

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