A recent Eighth District decision overturning a rape conviction raises fundamental questions about how Ohio law defines consent when victims are impaired.
Under the governing statute, prosecutors must prove that a defendant knew or had reasonable cause to believe the victim’s ability to resist or consent was substantially impaired because of a mental or physical condition. “Substantial impairment” refers to a present reduction in the victim’s ability to appraise the nature of their conduct or control their actions, which is a determination made case-by-case with deference to the fact-finder.
In State v. McClain, the appellate court overturned the trial court’s conviction, holding that prosecutors did not prove the defendant’s knowledge of the victim’s incapacity. The decision, which split the appellate court 2-1, is now headed to the Ohio Supreme Court for review. Chief Justice Sharon Kennedy and Justice Joseph Deters dissented, wishing to let the lower-court decision stand.
The Evidence at Trial
The jury heard the victim’s testimony that, while at a West Park bar, she consumed a single sip of a vodka tonic and was approached by two men. She later awoke in a parking lot disoriented, injured, and with her pants unzipped. Medical examiners documented bruising and facial injuries, while laboratory analysis of vaginal swabs identified DNA matching the defendant, Mr. Robin McClain. Mr. McClain denied both knowing the victim and having sexual contact. The jury returned a guilty verdict.
The Appellate Majority’s Reasoning
The appellate majority deemed the evidence insufficient to prove knowledge of impairment, emphasizing the absence of testimony about contemporaneous signs such as stumbling, slurred speech, or vomiting. Writing for the majority, Judge Michael John Ryan noted that “there was no testimony about the victim’s state at the time of the sexual conduct” and that “the sexual conduct in and of itself is insufficient to sustain the conviction.”
The majority explained its reasoning by drawing on established precedent: “Simply, neither the victim nor any other witness testified as to any particular aspect of the victim’s behavior that should have alerted McClain to her substantial impairment.” The opinion acknowledged that while memory loss may indicate substantial impairment, it does not necessarily prove the defendant’s knowledge. As the court noted, “a person experiencing an alcohol-induced blackout may still be able to walk, talk, and perform ordinary functions without others being able to tell that he or she is experiencing a blackout.”
The majority emphasized the limits of permissible inference, stating: “It is well-established that a trier of fact may not draw an inference solely and entirely upon another inference, where that inference is unsupported by any additional facts or inferences drawn from other facts.” The court cautioned that without evidence of the victim’s observable condition during the encounter, “the waters can be murky in determining whether a defendant knew or should have known that an alleged victim was substantially impaired.”
Accordingly, the majority vacated the decision and remanded the case back to the trial court.
The Dissent’s Sharp Rebuke
In a dissent to the appellate majority, Judge Mary Boyle argued that the evidence was more than sufficient to support the conviction. She contended that “the testimony, if believed[,] also demonstrates that McClain knew or had reasonable cause to know of [the victim’s] substantial impairment.”
Judge Boyle emphasized the totality of circumstances, writing: “From these facts, the jury could have reasonably inferred that McClain was aware that [the victim] was drugged, rendering her unable to consent, raped her, and then left her in the KeyBank parking lot, which is next to the coffee shop he frequented.” She noted that Mr. McClain had lied to investigators, pointing out that his wife testified that “if McClain told law enforcement that, in 2010, he did not go to bars, did not regularly drink, and only frequented coffee shops in the West Park area, that would have been untrue.”
The dissent took particular issue with the majority’s focus on traditional signs of intoxication like stumbling or slurred speech. Judge Boyle wrote: “These factors are not the only indicators of substantial impairment – especially in situations where the victim was involuntarily drugged.” She explained that in drug-facilitated assaults, “it is highly improbable that victims can testify about their state at the time of the sexual conduct or whether the perpetrator should have known that they were substantially impaired if they were drugged because they cannot remember.”
Judge Boyle warned of the practical consequences of the majority’s holding: “As written, it has the unintended consequence of effectively eviscerating R.C. 2907.02(A)(1)(c) and placing the State in the untenable situation of having to prove substantial impairment rape in situations where the victim was substantially impaired, i.e., drugged, which resulted in memory loss.” She concluded with a pointed observation: “Common sense dictates that consensual encounters do not end with someone awaken by a stranger in the middle of a cold, winter night, disoriented, with one’s pants unzipped, with no shoes on, a burning sensation in one’s vagina, and bloody and bruised, having to walk over a mile home.”
Broader Implications
The ruling has broader implications for cases involving drug-facilitated assaults and blackout episodes, where victims may not recall their condition or exhibit outward signs of impairment at the time of the assault. As the dissent noted, drugs used in these assaults “impact your ability to think clearly and remember what happened. And they work fast, usually between 10 and 30 minutes after they’re consumed.”
The majority opinion expresses a concern regarding the importance of protecting defendants from convictions based on insufficient or speculative evidence, noting the importance of preventing convictions that rest on “impermissible inference stacking.”
Evidence Collection Challenges
McClain also implicates best practices in evidence collection. The Sexual Assault Nurse Examiner did not conduct toxicology testing until more than 12 hours after the assault. This is consistent with her practice in delayed-report cases, and because victims choose to report at different times, if ever, the nurse may be left without another choice. But the practice nevertheless leaves prosecutors without chemical evidence that might have clarified impairment, when DNA evidence confirms sexual contact.
The SANE nurse testified at trial: “I’m most certain that I wouldn’t have thought a couple of vodkas would have made [the victim] black out for a few hours,” suggesting the possibility of drug-facilitation that could not be confirmed without timely testing.
What’s Next
The Ohio Supreme Court has accepted the case for review, and its forthcoming decision may clarify how prosecutors can establish a defendant’s knowledge of substantial impairment under Ohio law. The outcome is expected to shape how trial courts evaluate evidence in sexual assault cases involving questions of intoxication, memory loss, and consent. The Court’s resolution of this 2-1 split appellate decision could provide much-needed guidance on the intersection of substantial impairment and a defendant’s knowledge in cases where victims cannot testify to their observable condition during the assault.