Christopher R. Decker:
As we have seen in the criminal justice system, an explosion of cases involving alcohol and sex.
David R. Jones:
One of the most common types of rape charges charged these days is basically drunk misunderstandings between two young people.
Christopher R. Decker:
What we are seeing more and more frequently is the blurring between rape and regret.
David R. Jones:
What happens is that most oftentimes the fella wakes up with a good memory about what happened, and the woman does not or has no memory about what happened. And out of just kind of fear and confusion, she calls the police.
Christopher R. Decker:
And the next day this is charged criminally because someone doesn’t remember everything that they’ve done or they regret the decisions that they’ve made while they’re on alcohol.
David R. Jones:
Because we just recently had a case dismissed very much just like that. Just two people meeting and hooking up in lodo and then going to his place. And he describes an evening that was fully participatory.
Christopher R. Decker:
The lack of memory is not necessarily the same as incapacitation.
David R. Jones:
The law says that you have to be so intoxicated that you are unaware of your circumstances. You do not know what you’re doing. And that is not hardly ever the case. Obviously someone passed out. Somebody who cannot participate should not. That’s sexual assault. Those are crimes. Absolutely. But most oftentimes we get situations where women just does not remember what she did.
Christopher R. Decker:
So that blurring between the lack of memory and incapacitation is a significant matter in criminal defense of sexual assaults.
David R. Jones:
They were both drunk. And it’s just kind of a horrific thing for the prosecution and the state to start off with this knee jerk reaction to accuse a man just because he slept with a woman who was also drunk.
Christopher R. Decker:
It’s important to have a criminal defense team and an attorney that understands this explosion of new cases, how to handle them. Because more and more we are seeing criminal cases in the context of these late night encounters between two voluntary participants that have suddenly been turned into criminal prosecutions.
David R. Jones:
That case was dismissed because we were basically able to show through text messages and other evidence that she was very much intending to have sex with him that night.
Christopher R. Decker:
It’s always important to get the consent of another partner before you engage in sexual conduct. Having said that, that’s not the way intimacy really works in the real world. And we find that the use of alcohol is very prevalent. It reduces inhibitions. It’s the reason people have a few cocktails when they’re trying to meet someone that they don’t know.
David R. Jones:
Yeah, we don’t give alcohol as an excuse to anybody for anything, really, except when it comes to a woman’s ability to consent to sex. A guy can’t come home and say, honey, I was too drunk. Just don’t remember what I did. If he had an affair, that’s never gonna fly. A woman cannot say she was too drunk to understand that she was getting in a car and driving down the road when she killed a family of four. We do not give her the break of being that drunk to really not know what you’re doing when you’re driving a car. She may not remember it. She may not remember getting in the car and moving the gear shift and driving down the road with her hands. But those are the kind of the simple moves that are made in a sexual experience that people also don’t remember. So it is kind of tragic how we’ve kind of carved this out as a place of where a woman could do no wrong if she drunk. I once had a toxicologist tell me, if a woman is too drunk to drive, she cannot consent to sex. I mean, I thought half of us wouldn’t be here if drunk sex was completely illegal.
Christopher R. Decker:
Consent in the sexual realm is something different than, you know, consent to purchase a vehicle or consent to. To do other things. We don’t necessarily ask the partner, you know, can I begin sexual acts with you? We start kissing. It’s the reaction of the other party. It may be the way they’re moving or fondling or how they’re reacting to touching.
David R. Jones:
First of all, they’re never going to come investigate. A fella who calls and says, you know what? I was too drunk last night. I woke up with little memory of what happened, and I’m feeling sore in places that I shouldn’t be sore unless I was having sex. You want to come check this out?
Christopher R. Decker:
We must have had sex. And I’m not okay with that.
David R. Jones:
That’s. You’re not. Nobody’s coming.
Christopher R. Decker:
Nobody’s coming.
David R. Jones:
That’s. That’s just the inequity of it all.
Christopher R. Decker:
My name is Christopher Decker. I’m a partner at the Decker and Jones law firm. I’ve been a criminal defense attorney for 30 years. I’ve tried in excess of 50 sexual assault cases to verdict. Sexual assault in Colorado. Experience Matters, the law firm of Decker and Jones. Few law firms have so much experience in this important area of criminal defense.
David R. Jones:
Once I started getting these cases, I started noticing scenes in movies just all the time they were popular and perfectly accepted. Where two movie stars get drunk off their rear and go falling into bed together, slinging their clothes all over the place, and nobody’s talking about anything. Nobody’s breaking it down and saying, is this okay? Is that okay? Get. And I do this now, and they wake up the next morning with, like, huge hangovers, barely any memory of what happened. And that’s funny. Acceptable. That’s a romantic in a movie. But in the real world, that could be a Class 3 felony sexual assault or Class 4 felony sexual assault, depending on the facts. Lifetime sentencing, lifetime consequences. It’s important to get an attorney involved as quickly as possible in a situation like that because that can ruin your life.