by

Jill Paperno, Esq.

Author of Representing the Accused: A Practical Guide to Criminal Defense

Sometimes our clients are charged with engaging in sexual contact with complainants who are old enough to consent, but claim that based on their mental or physical condition, they could not. The penal law provides for prosecution if a complainant is physically helpless or mentally incapacitated. The distinction between a complainant who is physically helpless and one who is mentally incapacitated. is very important because if a defendant is charged with sexual conduct with someone who is mentally incapacitated, and the incapacity was based on the complainant’s voluntary consumption of alcohol or drugs, the defendant may not be convicted. So it is important to understand the distinction between physical helplessness and mental helplessness, to raise the issues based on the distinction in grand jury motions, and to address the issues, when appropriate, at trial. 

Penal Law Section 130.05(3) states that “A person is deemed incapable of consent when he or she is: (c) mentally incapacitated.”  Mentally incapacitated is defined in Section 130.00(6) of the Penal Law as follows: “'Mentally incapacitated’ means that a person is rendered temporary incapable of appraising or controlling his conduct owing to the influence of a narcotic or intoxicating substance administered to him without his consent, or to any other act committed upon him without his consent.”

This is the date-rape drug statute.  It’s intended to permit prosecution of those who, as they used to say, slipped someone a mickey (which has an interesting derivation – Mickey Finn – but I digress.)  This is a charge that we rarely see.

Anyway, the key to this prosecution is that the complainant cannot have become intoxicated voluntarily. See People v. Johnson, 23 NY3d 973 (2014). So what’s a prosecutor to do when a complainant who was really drunk says she was raped? Well, it seems that some actually charge defendants who have taken advantage of the voluntarily inebriated with an offense alleging physical helplessness.  But that’s a different charge.

Penal Law Section 130.05(3) states that “A person is deemed incapable of consent when he or she is:  (d) physically helpless. “Physically helpless” is defined in Section 130.00(7) as follows: “’Physically helpless’ means that a person is unconscious or for any other reason is physically unable to communicate unwillingness to an act.”  

See that?  UNCONSCIOUS OR…PHYSICALLY UNABLE TO COMMUNICATE – not mentally incapable of deciding.  In People v. Teicher, 52 NY2d 638 the Court of Appeals, in affirming the conviction of a dentist who had contact with his patients who were still under the effects of sedation, noted the aspect of physical helplessness:

Carson was heavily sedated at the time the initial touching occurred and, as a consequence, she was in an extremely weakened condition. Thus, although she had enough control over her body to pull her hand away after defendant had placed it against his penis, the trier of fact was entitled to infer that she lacked capacity to consent to the original touching because of her generally weakened condition. 

People v. Teicher, 52 N.Y.2d 638, 646.

With respect to another complainant in the same case, the Court stated, “the state of the victim's physical helplessness at any given moment is largely a question of fact which, in view of this and other testimony, we may not question upon this record.” 52 N.Y. 2d at 649. Although Teicher appears to support a conclusion that a person may be physically helpless and yet somehow attempt to foil the sexual conduct, the Court of Appeals concluded that in a voluntary intoxication case, the effort to stop the defendant established the complainant was not physically helpless:

The People thus argue, in substance, that Catherine was physically helpless at the moment she prevented defendant from fondling her. The argument is self-refuting; she could not have blocked him if she were helpless.  People v. Cecunjanin, 16 N.Y.3d 488, 492 (N.Y.2011).

The complainant in Cecunjanin was extremely intoxicated – a woman in a bar, slumped over, at times seeming physically helpless, at other times, not so much.  The Court noted her BAC of .26%, as well as the legal limit of .08%. The Court recognized the important distinction between sloppy, drunken conduct and physical helplessness.

For a good discussion and review of other cases comparing physical helplessness and mental incapacity, see People v. Battease, 74 AD3d 1571 (3^rd Dept., 2010).

So here is the take-away as I see it:

If a complainant engaged in voluntary intoxication, the defendant cannot be charged under a theory of mental incapacity.  So maybe the prosecutor will charge physical helplessness to try to get around the statute. But if the complainant does not display the true indicia of physical helplessness – unconsciousness or a physical inability to communicate - then the charge should not be filed.  Period. We must scrutinize the allegations and the elements of the charges.  Sometimes poor judgment is just poor judgment, and an unsuspecting, perhaps equally intoxicated participant should not be criminally charged.  In fact, to take it a step further, I think that this is one of several examples of how our penal law has criminalized sexual conduct and branded large numbers of people in ways that are just…criminal.