4.3Voluntary Intoxication

This section contains a brief discussion on the defense of voluntary intoxication as it relates to criminal sexual conduct offenses. For a more comprehensive discussion, see the Michigan Judicial Institute’s Criminal Proceedings Benchbook, Vol. 1, Chapter 10.

The defense of voluntary intoxication is available only to specific-intent crimes and is explained in MCL 768.37. MCL 768.37 states:

“(1) Except as provided in subsection (2), it is not a defense to any crime that the defendant was, at that time, under the influence of or impaired by a voluntarily and knowingly consumed alcoholic liquor, drug, including a controlled substance, other substance or compound, or combination of alcoholic liquor, drug, or other substance or compound.

(2) It is an affirmative defense to a specific intent crime, for which the defendant has the burden of proof by a preponderance of the evidence, that he or she voluntarily consumed a legally obtained and properly used medication or other substance and did not know and reasonably should not have known that he or she would become intoxicated or impaired.”¹

A.Defense Available

Voluntary intoxication is available as a defense to the following specific-intent criminal sexual conduct offenses:

•Assault with intent to commit criminal sexual conduct involving penetration, MCL 750.520g(1). People v Nickens, 470 Mich 622, 631 (2004).

•Assault with intent to commit second-degree criminal sexual conduct, MCL 750.520g(2). People v Snell, 118 Mich App 750, 755 (1982), overruled on other grounds by People v Grissom, 492 Mich 296, 320, 320 n 40 (2012).

B.Defense Not Available

Voluntary intoxication is not applicable to the following general-intent criminal sexual conduct crimes:

•First-degree criminal sexual conduct, MCL 750.520b. People v Langworthy, 416 Mich 630, 645 (1982).

•Second-degree criminal sexual conduct, MCL 750.520c. People v Brewer, 101 Mich App 194, 195 (1980).

•Third-degree criminal sexual conduct, MCL 750.520d. People v Corbiere, 220 Mich App 260, 266 (1996).

•Fourth-degree criminal sexual conduct, MCL 750.520e. People v Lasky, 157 Mich App 265, 272 (1987).

C.Intoxication Alone Not Legal Insanity

Voluntary intoxication alone is not sufficient to support a defendant’s claim of legal insanity.² People v Carpenter, 464 Mich 223, 231 n 5 (2001). MCL 768.21a(2) states:

“An individual who was under the influence of voluntarily consumed or injected alcohol or controlled substances at the time of his or her alleged offense is not considered to have been legally insane solely because of being under the influence of the alcohol or controlled substances.”