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12 - Commentary on Whitner v. State

from Part II - Gender on Trial

Published online by Cambridge University Press:  01 December 2022

Bennett Capers
Affiliation:
Fordham University, New York
Sarah Deer
Affiliation:
University of Kansas
Corey Rayburn Yung
Affiliation:
University of Kansas
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Summary

The decision of the Supreme Court of Massachusetts concerned the difficult problem of defining the quantum of intoxication abrogates a person’s ability to consent to sex. The jury convicted a police officer, who was summoned to assist a highly intoxicated person, of rape of that person. However, the high court overturned the conviction, holding that the “wholly insensible” test was too vague to support a legal conviction. Notably, the court offered no alternative to the rejected test, essentially leaving the state without any rule about the degree of intoxication or other incapacitation abrogates consent.

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Publisher: Cambridge University Press
Print publication year: 2022

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