It goes without saying that the crime of rape is one of the most serious crimes in
existence. In Indiana, the penalty range for rape can be anywhere from 3-40 years in
prison. Notwithstanding the prison sentence, a rape conviction will carry a lifetime sex
offender registry requirement as well as the label of being a sexually violent predator.
The Indiana rape statute is found at IC 35-42-4-1, and it provides that:
“(a)…a person who knowingly or intentionally has sexual intercourse with another
person or knowingly or intentionally causes another person to perform or submit to
other sexual conduct when:
(1) The other person is compelled by force or imminent threat of force;
(2) The other person is unaware that the sexual intercourse or other sexual conduct
is occurring;
(3) The other person is so mentally disabled or deficient that consent to sexual
intercourse or other sexual conduct cannot be given; or
(4) The person disregarded the other person’s attempts to physically, verbally, or by
other visible conduct refuse the person’s acts.”
This blog will focus specifically on IC 35-42-4-1(a)(3), and how the Courts have
interpreted what exactly constitutes being “so mentally disabled or deficient that consent
cannot be given.”
The Indiana legislature has never codified what constitutes “mentally disabled or
deficient” as it used in the rape statute. However, three cases have illuminated that the
voluntary intoxication of the alleged victim can constitute being mentally disabled or
deficient for purposes of the rape statute.
In Gale v State, witnesses testified that Gale bought M.A. several drinks at a bar.
Gale v. State, 882, N.E.2d 808, 812 (Ind. Ct. App 2008). Witnesses testified that M.A.
was extremely intoxicated, and had to be helped into the back of a friend’s car. Id.
Witnesses went on to describe that M.A. was going in and out of consciousness. Gale
was later found having sex with M.A. in the back of the car, at which point M.A.’s eyes
were closed and she was unresponsive. Id at 813. Gale was convicted of rape after a
jury trial and appealed his conviction (in part) on the basis that the State could not prove
that M.A. was too mentally disabled or deficient to give consent. The Indiana Court of
Appeals affirmed the conviction, reasoning that the State presented plenty of evidence
from which the jury could infer that M.A. was unable to give consent based on her level
of intoxication. Id at 818. The Indiana Court of Appeals, therefore, declared that a
victim’s voluntary level of intoxication is enough to constitute being “mentally disabled or
deficient” for purposes of the rape statute.
In M.W. v. State, D.T. drank alcohol for the first time at a birthday party. (Court of
Appeals Case No. 22A-JV-2952). Witnesses described that D.T. was “kinda wobbly”
and “acting a little different.” Tr. Vol. 2 at 7, 29. D.T. was later taken upstairs to a
bedroom with her clothes on. Id. Less than an hour later, D.T. testified that she blacked
out, and woke up to M.W. having sex with her. Id. at 47. M.W. was convicted of rape
after a bench trial. M.W. appealed the conviction, arguing that the State presented
insufficient evidence that D.T. was too mentally disabled or deficient to consent to
sexual intercourse. The Court of Appeals rejected this argument, stating that there was
sufficient evidence to uphold the trial court’s decision. By taking into account witness
observations of D.T. drinking for the first time, being “kind of wobbly,” and D.T.’s
testimony regarding blacking out, the Court of Appeals affirmed that D.T. was too
mentally disabled or deficient to consent to sexual intercourse based on her level of
intoxication.
Most recently, the Court of Appeals further clarified the definition of “mentally
disabled or deficient” for purposes of the rape statute in Montgomery v. State.
Montgomery v. State, 250 N.E.3d 478 (Ind. Ct. App. 2024). The Court of Appeals
declared that “the plain and ordinary meaning of the words ‘mentally disabled or
deficient’ is subnormal intelligence or mental disease or defect.” Id. at 483, see also
Ball v. State, 945 N.E.2d 252 (Ind. Ct. App. 2011). The Court went on to state that the
meaning of “mentally disabled or deficient” has been expanded for purposes of the
Indiana rape statute to include not only a victim of lower than normal intelligence, but
also a victim who was highly intoxicated. Id.
Indiana Courts have concluded that an individual’s level of intoxication can render
them mentally disabled or deficient for purposes of the Indiana rape statute. It is clear
that witness testimony regarding an alleged victim’s level of intoxication is sufficient to
convict individuals of rape.
Are you or someone you know facing rape charges? It is direly important to have an
experienced attorney on your side that understands how to defend these cases. Contact
the attorneys at Banks & Bower anytime at (317) 870-0019 or at [email protected]
to schedule a free consultation.
