States in Which There is Direct Case Law Stating That Voluntary or Involuntary Incapacity Can Render the Victim Incapable of Consenting or Caselaw Upholding Convictions in Which the Victim Was Voluntarily Intoxicated on Other Grounds (In the States Wherein the Sex Offense Statutes Either Do Not Define What Mental Incapacity Means or Do Not Address Incapacity to Consent at All)
| State | Incapacity Undefined or Unaddressed by Statute | Case Citation | Holding |
|---|---|---|---|
| Georgia | Unaddressed | Johnson v. State, 832 S.E.2d 676 (Ga. Ct. App. 2019) | “‘Although a majority of states do not criminalize conduct when a victim has become voluntarily intoxicated by drugs or alcohol, Georgia is not such a state.'” |
| Massachusetts | Unaddressed | Commonwealth v. Blache, 880 N.E.2d 736 (Mass. 2008). | The victim-complainant was voluntarily intoxicated, conviction was upheld on other grounds related to the standard for intoxication of a victim |
| Montana | Undefined | State v. Gould, 902 P2d 532 (Mont. 1995) | “The definition of ‘mentally incapacitated' is clear on its face. By its terms, it does not differentiate between voluntary and involuntary intoxication and is not limited to the latter.” |
| Nebraska | Undefined | State v. Gentry, 2013 Neb. App. LEXIS 184 (Neb. Ct. App. Oct. 22, 2013) | In this unpublished opinion, the victim-complainant was voluntarily intoxicated, the court held that the evidence supported a verdict of guilty of an aggravated sexual offense on either the theory that the victim was physically or mentally incapacitated. |
| Nevada | Undefined | Chavez-Hernandez v. State, 394 P.3d 209 (Nev. 2017) | Upholding a conviction in which the victims were voluntarily intoxicated to the “point of unconsciousness” under the theory that they were physically or mentally incapacitated. Challenged on grounds of sufficiency of evidence. |
| New Mexico | Unaddressed | State v. Sosa, 223 P.3d 348 (N.M. 2009) | The victim-complainant was voluntarily intoxicated. Conviction upheld on procedural grounds. |