In New York, Too Drunk To Consent Is Not Rape

By Michael Joseph on February 26, 2012

The recent case involving Greg Kelly illustrates a common misconception among women. They often believe that they can get drunk or high then have sex and then charge their male partner with rape. This simply isn’t so. This is often called morning after rape, because women attempt to turn a consensual experience into a rape charge the morning after. Our Westchester criminal defense lawyers regularly defend these cases in the criminal courts of Yonkers, Ossining, Sleepy Hollow, Tarrytown, White Plains and Irvington.

The law in New York does not impose criminal penalties for having sex with a drunk or high person who is exhibiting poor judgment. Often women understandably feel violated or betrayed that they did things that they would not have done if they were sober, but that is not rape.

In New York, Rape only occurs when a woman is physically helpless. To be physically helpless, a person must be unconscious or unable to consent because they are so intoxicated or drugged that they are not conscious or a drug, such as the date rape drugs renders them physically unable to move, although conscious.

If there is even a fear that someone may cry rape, a consultation with an experienced New York criminal defense lawyer who is familiar with sex crimes and rape charges. Often times, it is beneficial to refuse to speak with the police because they often create a hostile environment and even make threats of arrest, if a suspect does not admit that the girl was unconscious, even though they know that the girl was not. In the Kelly case, the matter was handled ethically because the defendant was the son of police brass, however, this is often not the case.

Our Westchester criminal defense lawyers have successfully handled numerous rape, sexual misconduct and other sex crimes. If you or a loved one is facing event the possibility of being accused, a consultation is absolutely necessary.

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