Judge Fisher continued in relevant part: Because the question posed here goes to the same inquiry – ascertaining the intoxicated person’s ability to form a particular state of mind – we see no reason not to apply the “prostration of faculties” standard. The Legislature’s silence as to the degree of intoxication required in this context strongly suggests an intention to adopt the familiar standard that has been utilized in criminal matters, as the Cameron Court observed for more than a century in this State. In applying this standard, we conclude that it will not suffice for an alleged victim to prove mere intoxication or that she would not have engaged in sexual relations with the defendant were she not intoxicated. An alleged SASPA victim must prove intoxication to such a degree that her faculties were prostrated to the point of being incapable of consenting to the sexual encounter.
In turning to the judge’s findings on intoxication, we start with the fact that the judge did not apply the prostration of faculties standard. The judge only concluded that plaintiff was “extremely voluntarily intoxicated” and “visibly intoxicated.” These conclusory descriptors provide little illumination. See Cameron, 104 N.J. 56 (observing that statements that one was “pretty intoxicated,” “pretty bad,” and “very intoxicated,” “are no more than conclusory labels, of little assistance in determining whether any drinking produced a prostration of faculties”). The judge did, however, provide some specifics. He found, for example, that “the young plaintiff consumed at least ten if not more alcoholic drinks during the course of the evening,” but he did not define how many hours were encompassed by the phrase “the course of the evening” nor did he identify the type of drinks consumed. The judge found that plaintiff and Sylvia drank at Sylvia’s home and two bars, that bartenders refused to continue to serve Sylvia, and that once at defendant’s residence, plaintiff had three more drinks. These findings relate to some of the indicia the Cameron Court deemed relevant when it called for a consideration of “the quantity of intoxicant consumed” and “the period of time involved.” Id. at 56. But the Cameron Court also found relevant: “the actor’s conduct as perceived by others,” what the actor “said” and how the actor “said it,” how the actor “appeared” and “acted,” the actor’s “coordination or lack thereof” and how that “manifested itself,” whether there was an “odor of alcohol,” the results of any blood-alcohol tests, “and the actor’s ability to recall significant events.” Ibid.
A lack of research and detailed analysis is more excusable for some trial courts than others. Some judges are retired, but deciding cases “on recall.” This judges typically do not have the benefits of law clerks to do time-consuming research.