Sexual Assault Statute Relating to Lack of Consent due to Intoxication Found Constitutional

On December 5, 2016, the Arizona Court of Appeals, which was asked by the Defendant in the case of State v. Causbie to find Arizona’s Sexual Assault statute relating to a victim’s purported lack of consent due to intoxication constitutionally void for vagueness, disagreed and upheld the statute.  In Causbie, the victim attended a party where she (as well as all of the other party-goers) imbibed substantial amounts of alcohol.  During the party, the victim rejected several advances from Causbie and described him to others as “creepy.”  When the victim decided to drive home, it was clear she was too impaired to drive, and she was assured it would be safe to remain at the residence where the party had been held and sleep overnight on the couch.  During the night, one of the other people who attended the party observed Causbie engaging in sexual activity with the victim who appeared to be passed out on the couch.  The victim had no specific recollection of the purported assault, although recollected a sensation of “thrusting fist pain or pounding” in her vaginal area, which she reported to the authorities, who brought a criminal prosecution against Causbie for sexual assault.

At the close of the evidence at trial, the judge instructed the jury, “In order for you to find that [victim] could not consent to sexual activity due to her use of alcohol you must find beyond a reasonable doubt that she was unable to comprehend the distinctively sexual nature of the conduct or was incapable of understanding or exercising her right to refuse to engage in that conduct with another.”  Causbie objected to giving the instruction as being ambiguous, which objection was overruled, and the jury returned a verdict against Causbie.

On appeal, Causbie relied on an earlier Arizona Supreme Court case which held the previous Arizona sexual assault statute unconstitutionally vague wherein a jury determined there to be a lack of consent without the assistance of expert testimony due to “mental defect” without further definition of the meaning of that term.  In that former case, the supreme court found  in order to prove a mental disorder, the State’s burden to show the purported disorder “was of such a degree that it precluded the victim from understanding the act of intercourse and its possible consequences.”  In the Causbie case, the court of appeals noted that incapacity resulting from mental diseases or defects are more long-standing “as compared to the immediate cognitive effects of alcohol.”  Whereas expert testimony is often necessary to “explain” to the jury the nature of such long-term disorders,  it is within the “common knowledge and experience” of reasonable jurors to assess the “temporary effects of alchohol on the mind and body.”  As such, the court determined that the statute provided “fair notice to a person of ordinary intelligence” that it is improper to engage in sexual activity with one whose ability to consent has been impaired by alcohol to a degree where the victim is “not capable of consenting.”

Causbie’s conviction and sentence were affirmed.

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