The Model Penal Code’s New Approach to Rape and Intoxication

The University of the Pacific Law Review Volume 48 | Issue 2 Article 19 1-1-2017 The Model Penal Code’s New Approach to Rape and Intoxication Erin Price The University of Pacific, McGeorge School of Law Follow this and additional works at: https://scholarlycommons.pacific.edu/uoplawreview Part of the Criminal Law Commons Recommended Citation Erin Price, The Model Penal Code’s New Approach to Rape and Intoxication, 48 U. Pac. L. Rev. 423 (2017). Available at: https://scholarlycommons.pacific.edu/uoplawreview/vol48/iss2/19 This Comments is brought to you for free and open access by the Journals and Law Reviews at Scholarly Commons. It has been accepted for inclusion in The University of the Pacific Law Review by an authorized editor of Scholarly Commons. For more information, please contact . The Model Penal Code’s New Approach to Rape and Intoxication Erin Price* TABLE OF CONTENTS I. INTRODUCTION ............................................................................................... 423 II. BACKGROUND INFORMATION ........................................................................ 426 A. The Traditional Approach to Intoxication............................................. 426 B. The 1962 Model Penal Code ................................................................. 428 C. The Model Penal Code’s Proposed Changes ........................................ 431 III. IMPLICATIONS OF THE PROPOSED CHANGES TO THE MODEL PENAL CODE ............................................................................................................ 434 A. How the Proposed Change Will Improve on the Current Code ............ 434 1. Culpability ...................................................................................... 434 2. Accommodation for Mutually Intoxicated Sexual Assault Scenarios......................................................................................... 436 a. Prevalence of College-Aged Drinking ..................................... 436 b. Effects of Alcohol on Mental Processes ................................... 441 3. Elimination of Gender-Biased Protection ...................................... 443 4. Remaining Questions ...................................................................... 446 IV. CONCLUSION ................................................................................................ 448 “Rape is unique. No other violent crime is so fraught with controversy, so enmeshed in dispute and in the politics of gender and sexuality.”1 I. INTRODUCTION Two freshmen get ready for an exciting Saturday night at their new college.2 The man, John, started drinking earlier in the day as part of a freshman initiation. * J.D. Candidate, University of the Pacific, McGeorge School of Law, to be conferred May 2017; B.A., Political Science, California State University, Chico, 2013. I want to extend my deepest thanks to Distinguished Professor Michael Vitiello for his ubiquitous guidance in this Comment and in my legal education. I also want to thank the Board of Editors of Volume 47 & 48 of The University of the Pacific Law Review—you have all taught me so much and will always be an inspiration to me. Last, but not least, I thank my best friend Chloe for always being my rock. 1. JON KRAKAUER, MISSOULA (Penguin Random House, 2015) (quoting DAVID LISAK, LORI GARDINIER, SARAH C. NICKSA & ASHLEY M. COTE, FALSE ALLEGATIONS OF SEXUAL ASSAULT, VIOLENCE AGAINST WOMEN (2010)). 423 2017 / The Model Penal Code’s New Approach to Rape and Intoxication The bonding ritual involved consuming large amounts of alcohol, resulting in stumbling and slurred words. Later describing his intoxication, John said it was, “the drunkest [he had] ever been.”3 The woman, Jane, took shots of vodka and drank numerous screwdrivers in her friend’s dorm room in an effort to get rid of the previous night’s hangover.4 The drinks led to her falling down. A friend then helped her back to her dorm room, which was in John’s building.5 While heading to her room, Jane met John’s roommate and she followed him to John’s room.6 Soon enough, John and Jane were engaged in what observers described as “something sexual.”7 Jane’s friends took her home before anything further occurred, but not until after Jane gave John her number.8 John and Jane later met up at the campus quad where they had sex that same night.9 A couple walking through the quad spotted them and notified campus security and police. John was then arrested and charged with rape.10 The next morning, John and Jane had little memory of the events.11 The night of their sexual encounter, John and Jane both had blood alcohol levels above the legal limit, and possibly, far above the legal limit.12 Like the example of John and Jane’s, circumstances in which both participants are intoxicated and engage in sexual intercourse are more prevalent on college 2. The following hypothetical is a compilation of the facts from a civil case, the events of which occurred at Occidental College, and a criminal case from Davis, CA. See Richard Dorment, Occidental Justice: The Disastrous Fallout When Drunk Sex Meets Academic Bureaucracy, ESQUIRE (Mar. 25, 2015), available at http://www.esquire.com/news-politics/a33751/occidental-justice-case/ (on file with The University of the Pacific Law Review) (discussing a civil action from Occidental College between two freshman students who had a drunken sexual encounter, and the male was subsequently expelled); Lauren Keene, Jury acquits Davis man of rape charges, THE DAVIS ENTERPRISE (Feb. 3, 2013), available at http://www.davisenterprise.com/ local-news/crime-fire-courts/jury-acquits-davis-man-of-rape-charges/ (on file with The University of the Pacific Law Review) (discussing the acquittal of a 21-year-old Davis man charged with rape after witnesses saw him having sex with a woman near the Amtrak station when both he and the woman had .23 and .17 BAC levels, respectively). 3. Dorment, supra note 2. 4. Id. 5. Id. 6. Id. 7. Id. 8. Id. 9. Id. 10. See Keene, supra note 2 (discussing the acquittal of a 21-year-old Davis man charged with rape after witnesses saw him having sex with a woman near the Amtrak station when both he and the woman had 0.23 and 0.17 BAC levels, respectively). 11. Dorment, supra note 2. 12. See id. (discussing that while the parties’ blood-alcohol levels were unknown, both had little-to-no memory of the sexual encounter); see also Keene, supra note 2 (discussing how the man’s and woman’s bloodalcohol content was 0.17 and 0.23, respectively). 424 The University of the Pacific Law Review / Vol. 48 campuses now than in the past.13 This raises the question of how the criminal law deals with situations where both the male and female are heavily intoxicated and engage in sexual intercourse but only one is accused of sexual assault. Statutes and social attitudes regarding rape have changed throughout our nation’s history.14 In contrast, the relevance of intoxication as a defense to (...truncated)