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Sexual Assault – Victim Incapable of Understanding Her Actions

Someone who takes sexual advantage of another person who is too drunk to understand what is happening commits the crime of sexual assault (victim incapable of appraising her actions).

Definition and Elements

A defendant commits the crime of sexual assault (victim incapable of understanding her actions) if he takes sexual advantage of someone who is drunk, on drugs, or has a mental or physical impairment that prevents her from understanding what is happening to her.

To prove that a defendant committed the criminal offense of sexual assault (victim incapable of appraising the nature of her own actions), the prosecutor must prove each of these elements:

  1. The defendant subjected the victim to sexual intrusion or sexual penetration.
  2. The victim was in an altered mindset.
  3. The victim’s altered mindset made her unaware of what she was doing or what was happening to her.

Examples of Sexual Assault (Victim Incapable of Understanding Her Actions)

Example 1: A college girl attended a fraternity party.  While she was at the party, someone put a drug in her drink that caused her to pass out on a bed.  After she passed out, one of the people at the party went into the bedroom and had sex with her.

Example 2: A man is taking care of his girlfriend, who was in a serious car accident.  That girlfriend takes too many prescription medications and passes out.  The man gropes her breasts and vagina while she is passed out.

Defenses to Sexual Assault (Victim Incapable of Understanding Her Actions)

Consent may be an available defense to this charge.  Because consent can occur even when someone is intoxicated it is important to understand the role it plays in your specific case.  Most people agree that consent occurs when one person voluntarily agrees to the request of another to do something sexual.

What is the difference between implicit and explicit consent?

Implicit consent happens when one person’s actions lead another person to believe they have consented to perform a sexual act.  In order to prove implicit consent occurred, you have to look at the totality of the circumstances surrounding what happened.  Experienced attorneys will start from the beginning of a date, or an evening, and identify all the details and actions that would support the argument of implicit consent.  Some relevant details could be where the two people met, whether this is their first date, or whether they have had sex previously.

Explicit consent occurs when one person tells another person they consent to a specific sexual act.

Criminal Penalties for Sexual Assault (Victim Incapable of Understanding Her Actions)

Sexual Assault (victim incapable of appraising her actions) is a felony with a sexual factual basis.  In the State of Colorado that means it carries the possibility of an indeterminate sentence.  The possible penalties this type of charge can be a sentence to the Department of Corrections for a period of between two years, up to a maximum of the rest of a defendant’s life.

A person convicted of sexual assault will be required to register as a sex offender and be placed on a sex offender registry.  Judges and prosecutors do not like sex assault charges.  It is one of those offenses that presents a high risk of actual prison time even for first offense.  This is especially true for cases involving the submission of the victim.