In North Carolina, a man can be charged with second-degree forcible rape for having sex with a partner who is “mentally incapacitated” or “physically helpless” due to excessive alcohol or drug consumption. Even if the sexual partner is the instigator of sexual contact, that person may legally not be able to consent. Just as a child or a developmentally disabled person cannot consent, the legal doctrine of “force implied in law” protects persons who are “unconscious or insensibly drunk.” Under the category of “physically helpless,” a sexual partner cannot consent if she is or becomes unconscious or asleep or is either physically or verbally unable to resist or communicate an unwillingness to engage in sex.

If a woman is significantly impaired and does not become unconscious, she is “mentally incapacitated.” “Mental incapacitation” is defined as being unable to appraise the nature of her conduct or resist the sex act. If the impairing substance was administered without her knowledge, she cannot consent. However, under North Carolina law, she can consent if she chose to ingest the impairing substance. The law does not protect a woman who voluntarily ingests intoxicating substances through her own actions. But if she passes out or blacks out, she then becomes “physically helpless,” and cannot consent.

Therefore, even if a drunk, but not unconscious, woman can consent, realistically, what is the likelihood that she
will be able to recall that consent? With intoxication and impairment comes a reduction in inhibitions and lapses or loss of memory. So is it not logical for a person who is very intoxicated to act in a manner inconsistent with her typical behavior or moral standards and later not recall her actions and words? If she believes she passed out, she qualifies as a “physically helpless” victim and it is irrelevant whether she voluntarily ingested the alcohol or drugs. If she does not recall whether she verbally consented to sex or if she recalls incorrectly due to her impairment, a rape charge could be filed resulting in a “he said/she said” trial.

Finally, what if the male who is claiming consent was also drinking? He is susceptible to the same impaired recall or memory loss as the impaired woman. Is his testimony reliable? The statute places the burden of realization on the male who knows or “should reasonably know” that the woman is mentally disabled, mentally incapacitated, or physically helpless. (N.C.G.S.§ 14-27.20, § 14-27.22) Impaired decision making and failure to rationally process information can cause an impaired man to ignore the obvious signs of his partner’s impairment which could result in a rape charge.