Satawa Law, PLLC. recently has won another Title IX hearing, as the office for title 9 and institutional equity at University in Western Michigan “unanimously determined that the preponderance of evidence does not support a finding that the responded engaged in sexual assault or sexual harassment.”Read More

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 Satawa Law, PLLC

There is no question that the “# Me Too” and “Never Again” movement has led to an increase in both legitimate and false allegations. The movement has certainly made the defense lawyer’s job more difficult, which in part has to do with the fact that the laws are constantly evolving, and over the past several years, it has become increasingly difficult for people accused of these offenses to defend against. Just one example is the concept of how intoxication is legally viewed in sexual assault cases.

Intoxication – It Can Be Used As A Sword Against The Accused, But Not As A Shield In Defense.

In Michigan, it is a crime to have sex with someone who is incapacitated. The alleged victim is excused for being drunk. However, if you, the accused is drunk, that does excuse your actions. Michigan jury instruction 6.1 states that voluntary intoxication is not a defense, and does not excuse the defendant if he committed this crime. In essence, it means that the defendant cannot use the fact that they were drunk to excuse an act of sexual assault against someone who was equally drunk. How can that be?

Michigan jury instruction 20.2 states that it is considered sexual assault to engage in sexual activity with someone who is “mentally incapable, mentally incapacitated, or physically helpless.” Mentally incapacitated means that the complainant was unable to understand or control what she was doing because of alcohol; physically helpless means that the complainant was unconscious, asleep, or physically unable to communicate that she did not want to take part in the alleged act.

Therefore, the prosecution must prove that the defendant knew or should have known that the complainant was mentally incapacitated or physically helpless at the time of the act. That is the one and only opening to a defense in a case like this; the question becomes if the male is as drunk as the female, and the female is too drunk to give consent, can the prosecutor establish that the male knew or should have known that the female was mentally incapacitated or physically helpless? This is an incredibly difficult issue that turns on the narrowest of margins.

The defendant is in an extremely difficult position of being handcuffed in a case like this in his/her effort to prove their own innocence. If the jury believes that the victim was drunk, could not have given consent, and does not remember what happened, then any sex at that point would be illegal – UNLESS the defendant can prove that he was too incapacitated to have known that the victim was mentally incapacitated or physically helpless. This is an exceptionally fine line that almost creates an affirmative duty on the accused.

There are many apps that can be used for the purposes of giving consent by checking a box on a smart phone, and some even give the option of really cementing consent by having the other person use their fingerprint on the screen or home button. In the end, in today’s climate it is better to be safe than sorry when engaging in a one-night stand or a drunken hook up. An exceedingly difficult to defend allegation of date rape is just one person’s word away from happening to you


It’s a catch-22, contradictory time, during which there is an effort to both protect women (who’ve historically been perceived as the weaker sex) under the law, and empower women through movements like “Me Too.” In other words, the law says that women must be empowered, and simultaneously protected. Even the law is conflicted and confused.

Every one of us who has a son worries that an ex-girlfriend or friend with benefits who is ticked off will make an accusation. This is why these cases are different, and why it is so important to hire an attorney who is an expert in specifically handling date rape and sexual assault matters.

For more information, a free case strategy session is your next best step. Get the information and legal answers you are seeking by calling (248) 509-0056 today.

Mark Satawa

Call Today For Your Free Case Strategy Session
(248) 509-0056