This week WBUR’s Here & Now looked at what it called the “voluntary intoxication loophole”: a gap in the law in New York and nearly two dozen other states that, according to the segment, makes it hard to prosecute rape when the victim had been drinking or taking drugs beforehand. The idea behind the gap is that a person who chose to drink is treated differently from a person who was drugged without knowing it.
Massachusetts handles the question through a test the Supreme Judicial Court laid out in 2008. That test asks how impaired the person was, not why. Here is what the law here says, what prosecutors have to prove, and where the limits are.
The statute says “by force and against his will”
The Massachusetts rape statute, G.L. c. 265, § 22(b), punishes anyone who “has sexual intercourse or unnatural sexual intercourse with a person and compels such person to submit by force and against his will, or compels such person to submit by threat of bodily injury.” The penalty is up to 20 years in state prison, and up to life for a second offense.
Read literally, the statute requires two things: force, and lack of consent. The words “drunk,” “intoxicated” and “incapacitated” do not appear in it. The law on intoxication comes from the courts.
The rule: incapable of consenting, for any reason
The SJC first held in 1870, in Commonwealth v. Burke, 105 Mass. 376, that lack of consent can be proved by showing that the complainant was incapable of consenting. In Commonwealth v. Blache, 450 Mass. 583 (2008), the court returned to Burke and restated the rule for modern juries.
First, being drunk is not enough by itself. “It is a matter of common knowledge that there are many levels of intoxication, and the fact of intoxication, by itself, does not necessarily mean that the individual in question is incapable of deciding whether to assent to a sexual encounter.” The question is “whether, as a result of the complainant’s consumption of drugs, alcohol, or both, she was unable to give or refuse consent.”
Second, the person does not have to be passed out. The defendant in Blache argued the rule should apply only when the complainant was “unconscious or nearly so.” The SJC rejected that as “too restrictive”:
“We conclude that an instruction concerning capacity to consent should be given in any case where the evidence would support a finding that because of the consumption of drugs or alcohol or for some other reason (for example, sleep, unconsciousness, mental retardation, or helplessness), the complainant was so impaired as to be incapable of consenting to intercourse.”
Third, the force requirement changes. If the jury finds beyond a reasonable doubt that the person was incapable of consenting, “that finding satisfies the element of lack of consent, and as a corollary, the Commonwealth need only prove the amount of force necessary to accomplish intercourse.” Prosecutors do not have to show the person was held down or threatened.
What the rule does not ask: whether she chose to drink
Nothing in the Blache standard turns on how the person came to be impaired. The test covers “the consumption of drugs or alcohol or for some other reason.” It applies the same way whether someone was slipped a drug or drank too much on their own.
The facts of Blache itself show it. According to the opinion, the complainant had smoked marijuana, taken an anti-anxiety medication, had not eaten, and drank “a lot” at a bar. A toxicology expert estimated her blood alcohol level at the time at between 0.176 and 0.24 percent. All of that was her own choice. The SJC still held that the jury should be instructed on incapacity to consent, because the evidence supported it.
The other half of the rule: what the defendant knew
The incapacity rule carries a protection for defendants, too. In Blache, the SJC held that when the Commonwealth relies on incapacity, it “must prove that the defendant knew or reasonably should have known that the complainant’s condition rendered her incapable of consenting to the sexual act.”
“Reasonably should have known” is an objective standard. A defendant cannot escape it by saying he did not notice, if a reasonable person would have. But a defendant who reasonably could not tell how impaired the other person was cannot be convicted on an incapacity theory. The court made that knowledge requirement apply to trials held after its decision.
This is where many of these cases are actually fought. Both people may have been drinking, memories may be incomplete, and the jury has to decide how impaired the complainant was and whether that was apparent.
How the case came out
The defendant in Blache was a Methuen police officer who responded to a call about the intoxicated complainant and got permission from headquarters to drive her home to Haverhill in his cruiser, according to the opinion. A Superior Court jury convicted him of rape. The SJC ordered a new trial because the judge’s instructions did not adequately explain what incapacity to consent means, and said that at any retrial he would be entitled to the knowledge instruction. Two justices agreed a new trial was required but disagreed with the court’s reasoning on whether an incapacity instruction was warranted.
What this means in practice
- Drinking does not equal consent. In Massachusetts, a person’s own decision to drink does not, by itself, take a case outside the rape statute.
- Drinking does not automatically equal incapacity, either. Prosecutors must prove the person was so impaired as to be incapable of consenting, beyond a reasonable doubt.
- The defendant’s perception matters. The Commonwealth must also prove he knew or reasonably should have known it.
- Evidence often comes from others. Witnesses who saw how the person was acting, bar receipts, video, texts and toxicology are commonly how impairment is shown.
Frequently asked questions
Can a person who was drunk legally consent to sex in Massachusetts?
Yes, if they were still capable of deciding. Under Commonwealth v. Blache (2008), intoxication alone does not mean someone cannot consent. The question is whether the person was so impaired by drugs, alcohol or both as to be incapable of consenting.
Does Massachusetts have a voluntary intoxication loophole for rape?
The SJC’s test in Blache applies to impairment from “the consumption of drugs or alcohol or for some other reason,” and does not distinguish between voluntary and involuntary intoxication. The complainant in Blache had been drinking voluntarily.
Does the person have to be unconscious?
No. The SJC said the law “does not require that the complainant have been rendered ‘unconscious or nearly so’ before she may be deemed past the point of consent.”
What does the prosecution have to prove about the defendant?
That the defendant knew or reasonably should have known that the complainant’s condition made her incapable of consenting.
What is the penalty for rape in Massachusetts?
Up to 20 years in state prison under G.L. c. 265, section 22(b), and up to life for aggravated rape under section 22(a) or for a second offense.
Sources: WBUR Here & Now, October 6, 2026 (segment summary). Commonwealth v. Blache, 450 Mass. 583 (2008), majority and partial dissent read on CourtListener; Commonwealth v. Burke, 105 Mass. 376 (1870), as discussed in Blache. G.L. c. 265, section 22 read at malegislature.gov. We have not reviewed the laws of the other states mentioned in the WBUR segment. General information about Massachusetts law, not legal advice. If you have been assaulted, a local rape crisis center can help, whether or not you report to police.