LANSING, Mich. (June 3, 2021) — Sen. Jeff Irwin (D-Ann Arbor) introduced a bill that would change the definition of “mental incapacitation” as it pertains to sexual assault and rape in the Michigan Penal Code, and make it absolutely clear that it is illegal to sexually assault anyone that is unable to consent because they are under the influence of drugs or alcohol.

Under current Michigan law, only individuals who were unwittingly or forcibly given drugs or alcohol prior to being sexually assaulted or raped are considered mentally incapacitated, and therefore unable to consent to sexual activity. If an individual uses drugs or alcohol, due to their own volition, and is later sexually assaulted or raped, they are not considered mentally incapacitated under Michigan law. It is possible that assailants would be prosecuted under current law, but the narrow definition of mental incapacitation complicates the prosecution.

“Michigan should close this loophole that allows some perpetrators of sexual assault to walk away simply because the law is unclear regarding people under the influence of drugs or alcohol,” Sen. Irwin said. “We need to make it crystal clear that consent is absolutely required and that somebody who is drunk cannot consent. No one ever deserves to be sexually assaulted, nor is engaging in alcohol or drug use ever an invitation for unwanted sexual activity.”

Senate Bill 497 would change the definition of mentally incapacitated such that anyone who is under the influence of a mind-altering substance, to the extent that they can no longer knowingly consent to sexual activity, is considered mentally incapacitated whether that substance was used voluntarily or not. This would include situations where the victim is unconscious, experiencing a so-called “blackout,” or otherwise rendered incapable of appraising or controlling their conduct due to the use of said substance. Changing this law is crucial in enabling those who are sexually assaulted or raped while under the influence of drugs or alcohol to seek justice.

Michigan is, unfortunately, not alone in this issue. As of 2016, intoxication provisions in 40 states did not include situations in which someone chose to consume drugs or alcohol, according to the Brooklyn Law Review. Additional attention has recently been brought to this issue following a Minnesota Supreme Court Case in March of this year, in which the court unanimously found that the defendant could not be found guilty of felony rape, despite overwhelming evidence, because the alleged victim got voluntarily drunk beforehand. This case hedged on Minnesota’s definition of “mentally incapacitated,” which is similar to Michigan’s current law and is a clear demonstration that our current mental incapacitation laws imperil the opportunity for survivors to see justice.

Nearly 10 million U.S. women have been raped while intoxicated — most of whom became drunk by choice. Oftentimes, offenders purposefully seek out victims in that kind of vulnerable state. The 2011 National Intimate Partner and Sexual Violence Survey found that 9.3% of women and 1.1% of men have experienced alcohol- or drug-facilitated rape in their lifetime.

“It is imperative that we pass my bill and make it absolutely clear that sexually assaulting someone who is incapacitated due to drugs or alcohol is illegal,” Sen. Irwin said. “My hope is that my bill will help bring justice to survivors of sexual assault by allowing perpetrators to be prosecuted for their actions.”