Abstract
This article analyzes a criminal rape trial in which neither the male nor the female claimed any memory of the sex act. Afterward, the female and the prosecution contended that under such circumstances, a rape had occurred on the theory that the female was unconscious. The male denied any memory of the sex act, even under hypnosis, and was found not guilty. The acquittal was apparently based on the jury's belief that both the female and the male were conscious during intercourse but were unable to recall the sex act due to alcohol-induced blackouts. Conclusion: In assessing potential criminal liability for participation in sexual intercourse between intoxicated persons lacking memory of the incident, and in the absence of evidence of force, the government should carefully avoid holding either participant to a higher level of legal responsibility than the other for such intercourse. Seldom is prosecution warranted under such circumstances.
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