The Appellate Court continued in relevant part: Having determined that the victim’s intoxication – even when produced voluntarily – may support a finding that the victim could not consent, we consider the level of intoxication required to support such a finding. It is probably best to consider this question from the standpoint of the well-established meaning of “consent”: a “voluntary yielding to what another proposes or desires.” Black’s Law Dictionary 380 (11th ed. 2019). Stated conversely, an “involuntary yielding” is not consent. Because the question whether plaintiff was able to voluntarily yield to defendant’s actions requires consideration of her state of mind at the time, we find an appropriate analogy in the intoxication defense available in the criminal justice setting because that defense challenges the actor’s ability to form the state of mind required by the offense charged.
A criminally-accused individual’s intoxication will “negative an element of the offense,” N.J.S.A. 2C:2-8(a), when it produces “a disturbance of mental or physical capacities,” N.J.S.A. 2C:2-8(e)(1). The Supreme Court interpreted this latter provision “as intending nothing different” than the “firmly fixed” concept, State v. Cameron (1986), that an accused’s intoxication has caused “such prostration of the faculties as puts the accused in such a state of being incapable of forming an intention from which” the accused acted, ibid. (quoting State v. Treficanto, 106 N.J.L. 344, 352 (E. & A. 1929)).
This certainly does not mean that one “who has had a few drinks” meets the standard. State v. Stasio (1979) (Pashman, J., concurring and dissenting)). Far from it. “The mere intake of even large quantities of alcohol will not suffice.” Stasio, at 495. When intoxication is proposed as a defense to a criminal charge, it “cannot be established solely by showing that the defendant might not have committed the offense [if] sober.” Ibid. (citing Final Report of the New Jersey Criminal Law Revision Commission, Vol. II, Commentary (1971) at 68). In short, the intoxication required to reach the “prostration of faculties” standard must be of “an extremely high level.” State v. Mauricio (1990).
If “having a few drinks” makes someone incapable of consenting to sexual intercourse, there are few among us who have not been a victim or perpetrator of a sexual assault. The Court again seems to take an overly detailed analysis of the issue.