Alia Hafez (Rutgers, The State University of New Jersey – Rutgers Law School) has posted Voluntary Intoxication and Culpability: Rethinking Rape Law’s Moral and Legal Contradictions on SSRN. Here is the abstract:
This paper examines the legal and ethical contradictions that arise when voluntary intoxication is involved in rape prosecutions. Author Alia G. Hafez argues that current law creates a “legal fiction” by treating the decision to drink as a proxy for criminal intent, effectively imposing a strict liability standard on defendants. The analysis critiques the asymmetric application of capacity standards, where mutual intoxication typically renders the complainant “incapacitated” but the defendant “reckless”. Ultimately, the paper calls for a reconstruction of fairness that aligns criminal liability with a defendant’s actual cognitive state rather than gendered social expectations or idealized standards of sobriety.