Short answer: Michigan law treats consent as a defense where the complainant was of age and had capacity. Capacity is defined narrowly in MCL 750.520a: being drunk is not the same as being mentally incapacitated or physically helpless, and the prosecution must also prove the accused knew or should have known.
The Statutory Definitions Are Narrower Than People Assume
Under MCL 750.520a, mentally incapacitated means temporarily unable to appraise or control conduct because a substance was administered without consent, or because of another act committed on the person. Physically helpless means unconscious, asleep, or otherwise physically unable to communicate unwillingness.
Neither term means "had been drinking". People drink, make decisions they later regret, and remember them imperfectly. That is not, by itself, a crime.
The Knowledge Element
Even where incapacity is established, the prosecution must prove the accused knew or reasonably should have known. Where both people had been drinking to a similar degree, and the complainant was walking, talking and texting coherently, that element is genuinely contested — and the digital record from that night usually speaks to it directly.
Where Consent Is Never a Defence
- Where the complainant was under the age of consent — Michigan’s is 16. See statutory rape and CSC 3rd degree.
- Where the complainant was legally incapacitated as defined above
- In certain relationships defined by statute, including some involving authority or treatment
What This Means Practically
Most contested adult cases are decided on capacity and knowledge rather than on whether the encounter happened. That makes the messages, the video, and the witnesses from that night the centre of the defence. See date rape and drug-facilitated allegations and sexual assault defence.
What Coercion Means in Practice
Force and coercion under the CSC statutes are not limited to physical violence. The statute contemplates threats, concealment or surprise, and the use of a position of authority to coerce submission.
That breadth matters. It means a case can be charged without any allegation of physical force, and it means the contested question is often what was said and what the relationship between the parties was — not what was done physically.
The Evidence That Speaks to Capacity
Where incapacity is alleged, the most persuasive evidence is almost always contemporaneous and digital.
- Messages sent by the complainant during the relevant window — coherence, spelling and content all speak to capacity
- Video from bars, rideshares, lobbies and doorbells showing how someone was actually moving and behaving
- Rideshare and card records establishing an independent timeline
- Witnesses who interacted with the complainant shortly before or after
This material is time-limited. It is why a preservation letter in the first days is worth more than almost any later effort.
Withdrawn Consent and Ongoing Encounters
Consent is not a single event at the start of an encounter. It can be withdrawn, and continuing after it is withdrawn can support a charge.
In contested cases this is frequently the actual dispute — not whether the encounter was consensual at the outset, but what was communicated during it and how clearly. Those cases turn on detail, sequence and credibility, and they are won by preparation rather than by argument.
Frequently Asked Questions
Can someone consent if they have been drinking?
Yes. Michigan law distinguishes intoxication from legal incapacity. The prosecution must prove the complainant was mentally incapacitated or physically helpless as MCL 750.520a defines those terms.
What if I was also drunk?
Voluntary intoxication is generally not a defence to the conduct, but it is highly relevant to what you reasonably should have known about the other person’s capacity, which is an element the prosecution must prove.
Does saying yes earlier mean consent for later?
No. Consent can be withdrawn, and prior consent on a different occasion does not establish consent on this one.
Is there a written consent that protects me?
No. There is no form that forecloses a prosecution. Contemporaneous messages are useful evidence, but they are evidence rather than protection.
Can a married person be charged?
Yes. Michigan’s criminal sexual conduct framework applies regardless of marital status.
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If you are under investigation or have been charged, the decisions you make in the first days matter more than almost anything that happens later. Do not speak to police, do not contact the complainant, and do not delete anything. Call me at 616-438-6719 — the consultation is free and I answer 24/7, across Kent, Ottawa, Allegan, Barry, Ionia, Muskegon, Newaygo and Van Buren counties.