Is Intoxication an Affirmative Defense to Third Degree Sodomy?

People v. Newton, 2007 NY Slip Op 03754, is a really interesting New York Court of Appeals decision from earlier this month--and one that I disagree with.  My disagreement with the decision comes as bit of a surprise to me, since I have a difficult time wearing my criminal-defense-attorney-colored-glasses when it comes to sex crimes.  I can do it, but it's not easy for me.

But, in this case, when I put those glasses on, I find myself disagreeing with the Court's decision.

The Court upheld the trial court's ruling which denied the defendant's request to charge the jury that his intoxication at the time of the alleged conduct was an affirmative defense to the charge of Sodomy in the Third Degree.  Instead, the trial court advised the jury that intoxication is not a defense to that crime "under any circumstances."

As explained in the Court's decision:

To be guilty of third-degree sodomy under Penal Law § 130.40(3), defendant was required to have engaged in the sexual act "with another person without such person's consent where such lack of consent [was] by reason of some factor other than incapacity to consent."

The Sexual Assault Reform Act fleshed out this crime by specially defining "lack of consent" for purposes of third-degree sodomy as     "circumstances under which, at the time [of the sexual act], the victim clearly expressed that he or she did not consent to engage in such act, and a reasonable person in the actor's situation would have understood such person's words and acts as an expression of lack of consent to such act under all the circumstances" (Penal Law § 130.05[2][d]).

The Court concluded that since the "defendant's subjective mental state is not an element of the crime of third-degree sodomy, evidence of intoxication at the time of the sexual act is irrelevant."  The Court's rationale was that:

(T)he proper inquiry for the factfinder is not whether a defendant actually perceives a lack of consent, but whether the victim, by words or actions, clearly expresses an unwillingness to engage in the sexual act in such a way that a neutral observer would have understood that the victim was not consenting.

I've got a problem with that conclusion.  Granted, the defendant's mens rea is not an element of this crime, but the defendant's perception of the victim's alleged lack of consent is important.   Lack of consent is to be viewed from the perspective of one in the defendant's situation, and one's intoxication can certainly affect one's perception. 

I don't think that intoxication should be an absolute defense to any crime, especially not sex crimes.  If that were the case, then everyone would have a green light to get loaded and then rape and pillage to their heart's content with the knowledge that their intoxication effectively shielded them from prosecution for their actions. 

Not a great message to send to our citizens--especially those living in fraternity houses, but I most certainly digress.

I think that Eric at Indignant Indigent hit the nail on the head with his analysis of this case:

(I)t seems to go a bit further than necessary to say that evidence of intoxication is "irrelevant" to the crime of third-degree sodomy...If the defendant is intoxicated at the time of the incident, then it would seem the proper inquiry for the jury is whether a reasonable, intoxicated person would have understood the complainant's words and actions to indicate a lack of consent. While not technically an affirmative defense that needs to be charged to the jury, a defendant's intoxication is nevertheless a fact to be considered by the jury in determining guilt.