Intoxication of the Accused in Michigan Criminal Sexual Conduct Cases

The accused's own voluntary intoxication is not a defense to a criminal sexual conduct (CSC) charge in Michigan. MCL 768.37(1) says it is not a defense to any crime that the defendant was under the influence of or impaired by a voluntarily and knowingly consumed alcoholic liquor, drug, or other substance.^[7] The statute has one exception: an affirmative defense to a specific intent crime, involving a legally obtained and properly used medication or other substance, which the defendant must prove.^[1]

This page explains what the statute, the model jury instructions and the judicial benchbook say. It is not legal advice and is not a recommendation to rely on any defense.

This page explains the statute, the exception, how it applies to each CSC offense, and why older descriptions of the law, including one heading in a judicial benchbook, do not match the statute's text. The separate question of a complainant's intoxication is covered in Incapacitation, intoxication and consent.

What does MCL 768.37 say?

The statute has a rule and an exception.

Part	Text
The rule, subsection (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."[1]
The exception, subsection (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."[2]

The section was added by 2002 PA 366. It took effect September 1, 2002 and applies to crimes committed on or after that date.^[2]

"Consumed" means "to have eaten, drunk, ingested, inhaled, injected, or topically applied, or to have performed any combination of those actions, or otherwise introduced into the body."^[1]

The model jury instructions follow the statute. M Crim JI 6.1 tells jurors that voluntary intoxication is not a defense to the crime charged.^[8] M Crim JI 6.2, for a specific intent crime, tells jurors the defendant is not guilty if the defendant proves by a preponderance of the evidence that he or she lacked the required intent because of a legally obtained and properly used medication or other substance whose effect he or she did not know and reasonably should not have known, and that it is not a defense that the defendant was under the influence of a voluntarily and knowingly consumed alcoholic liquor, drug or controlled substance.^[8]

What does the exception require?

Subsection (2) has these parts:^[1]

1. A specific intent crime. The defense is written as a defense "to a specific intent crime."^[2]
2. A legally obtained substance. The medication or other substance was legally obtained.^[2]
3. Proper use. It was properly used.^[2]
4. No reason to expect impairment. The defendant did not know and reasonably should not have known that he or she would become intoxicated or impaired.^[2]
5. The defendant's burden. The defendant has the burden of proof by a preponderance of the evidence.^[2]

On the elements of a crime, the prosecutor carries the burden beyond a reasonable doubt and the defendant is not required to prove anything.^[9] For this affirmative defense the statute puts the burden on the defendant.^[2]

How the words "legally obtained and properly used medication or other substance" apply to a particular substance is not addressed in the sources read for this guide.^[1]

Which CSC offenses are general intent and which are specific intent?

The exception is written for "a specific intent crime," so the classification of the offense matters.^[1]

Offense	Classification	Effect under MCL 768.37
First-, second-, third- and fourth-degree CSC	General intent, as listed in the Sexual Assault Benchbook.[3]	Voluntary intoxication is not a defense; the medication exception is written for specific intent crimes.[7][2]
Assault with intent to commit CSC involving sexual penetration, and assault with intent to commit second-degree CSC	Specific intent, as listed in the Sexual Assault Benchbook.[4]	Under the statute's text, voluntarily and knowingly consumed alcohol or drugs are not a defense; subsection (2) provides the medication defense, on the defendant's burden.[1]

The Sexual Assault Benchbook states that criminal sexual conduct is most often a general intent crime, and it lists first-, second-, third- and fourth-degree CSC as crimes to which voluntary intoxication is not applicable.^[10][3] The assault offense is described in Assault with intent to commit CSC.

Why do some sources say intoxication is "available" for assault with intent?

The statement appears in a reference written for judges. Section 4.3 of the Sexual Assault Benchbook quotes MCL 768.37 and then, under the heading "Defense Available," says voluntary intoxication is available as a defense to the two specific-intent offenses of assault with intent to commit CSC.^[4]

The statute's own words are narrower. For crimes committed on or after September 1, 2002, its rule covers "any crime," and the only defense it leaves is the medication defense in subsection (2).^[7][2]

The same section lists first- through fourth-degree CSC as general-intent crimes to which voluntary intoxication is not applicable, and adds that voluntary intoxication alone is not sufficient to support a claim of legal insanity.^[11][4] This guide follows the statute's text, which the model jury instruction for specific intent crimes also tracks: subsection (1) says voluntary intoxication is not a defense to any crime "except as provided in subsection (2)," and subsection (2) is the medication defense.^[1][8] The benchbook's heading does not say more than that the defense is "available," and how a court would apply it in a given case is a question for a lawyer.

How does this interact with other rules?

Noticing the other person's condition

Several CSC provisions depend on whether the actor "knows or has reason to know" that the other person is mentally incapable, mentally incapacitated or physically helpless. That is determined by a reasonable-person, objective standard, not by the defendant's subjective perception and evaluation of the other person's condition.^[12] The Court of Appeals has explained that the Legislature intended to eliminate liability only where the condition is not apparent to reasonable persons.^[13] In the same case the defendant argued that his intoxication could be a defense if it kept him from knowing or having reason to know of the other person's condition; the court disagreed, saying that language does not impose a specific intent element.^[14]

The complainant's intoxication

This is a separate question governed by a different statute. Since October 10, 2023, "mentally incapacitated" means that a person is rendered temporarily incapable of appraising or controlling the person's conduct due to the influence of a narcotic, anesthetic, alcohol, or other substance, or due to any act committed upon that person without consent.^[5] The earlier definition referred to a substance "administered to that person without his or her consent."^[6]

The model jury instructions include bracketed language that it does not matter if the complainant voluntarily consumed the drugs or alcohol.^[15] The benchbook states that a consent defense is inapplicable to offenses that require proof of that condition.^[16] See The consent defense in CSC cases.

Mental illness and intellectual disability

Evidence of a mental condition is governed by different rules from intoxication. Under MCR 6.201(B), a defendant who intends to introduce expert evidence relating to mental illness or intellectual disability bearing on the defendant's specific intent gives the prosecutor written notice and files it not less than 30 days before the trial date, or at such other time as the court directs.^[17]

What the statute does not address

MCL 768.37 speaks of substances that were "voluntarily and knowingly consumed."^[1] The Use Note to M Crim JI 6.2 says that neither the instruction nor the statute addresses involuntary or unknowing consumption of an intoxicant as a defense to a crime.^[8] This page states no rule about that situation.

What people get wrong

"Being too drunk to know what one was doing is a defense." Under the statute, voluntary and knowing intoxication is not a defense to any crime.^[1]

"Intoxication is a defense to specific-intent crimes like assault with intent to commit CSC." For crimes committed on or after September 1, 2002, the statute's text leaves only the medication defense in subsection (2).^[1]

"If the complainant chose to drink, there can't be a charge." The former definition of "mentally incapacitated" required a substance administered without the person's consent; since October 10, 2023 the definition names alcohol and has no such requirement.^[5][6]

"We were both drunk, so it cancels out." These are separate questions under separate statutes: the accused's intoxication is governed by MCL 768.37, and the complainant's condition by the definitions in the CSC statutes.^[1][5] The other defenses and their limits are summarized in Defenses to sex crime charges, and common misconceptions are collected in Michigan sex crime myths.