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Under What Circumstances Does Mixing Drugs or Alcohol With Sexual Conduct Become A Crime Under Ohio’s Rape Statute?

by | Apr 23, 2020 | Sex Offenses

Ohio’s rape statute, 2907.02(A)(1)(c) says:

No person shall engage in sexual conduct with another who is not the spouse of the offender or who is the spouse of the offender but is living separate and apart from the offender, when any of the following applies:

The other person’s ability to resist or consent is substantially impaired because of a mental or physical condition or because of advanced age, and the offender knows or has reasonable cause to believe that the other person’s ability to resist or consent is substantially impaired because of a mental or physical condition or because of advanced age.

Essentially, this means any sexual conduct (defined as vaginal or anal intercourse [involving penetration however slight], fellatio, or cunnilingus between persons) is prohibited when: 1) the victim cannot resist or consent because of substantial impairment; and 2) the offender knows or should know the victim lacks the ability to resist or consent because of substantial impairment.

Case Example: Ohio v. Foster, 2020-Ohio-1370: The Eighth District Court of Appeals Emphasizes Substantial Impairment Alone is Insufficient to Support a Rape Conviction

Facts of the Case

In Ohio v. Foster, the alleged victim, H.C., testified she was out all evening with friends drinking. She bar hopped and throughout the evening over the course of about five hours, she had a vodka martini, another vodka drink, a few glasses of champagne, and four to six shots of liquor. Sometime between 10:30 and 11:30 PM, her friends left to go to another bar at which point H.C. decided to Uber home. She described herself as drunk at that time. Because her cell phone died around 11:30 or midnight, she could not call an Uber home. She vaguely remembered being outside of Dive Bar and being in a yellow cab but does not remember what happened after that.

Her next memory was waking up in the middle of the night in a dark room, with an older man on top of her having sex with her. As it turns out, she went back to a hotel with two men she met in the taxi.

The prosecutor played a video of H.C. walking from the taxi to the hotel without issue. H.C. acknowledged herself in the video and said she experienced a blackout. Despite H.C. testifying she did not remember the taxi cab ride or anything else until waking up in the middle of the night, she unequivocally denied that she propositioned, initiated, or consented to sexual conduct with Mr. Foster.

Additionally, H.C. testified when she woke up in the morning, she noticed she was covered with a blanket and her pants and underwear were all the way down and pulled over her knee-high boots. She saw a younger guy standing over her telling her she needed to leave, so she gathered her stuff, left the hotel room after “kind of realizing what’s going on,” and went to the front desk to report she had been assaulted in the hotel room.

H.C.’s two friends who were with her earlier in the night testified as to H.C.’s intoxication. One testified, we were both “really drunk” by about 10:30 PM, when she left the bar. H.C.’s other friend testified H.C. “wasn’t falling all over the place or slurring her words or anything.” She further described herself as “being tipsy and intoxicated” and described H.C. as “probably the same level as me.”

The state’s expert testified based upon a blood draw, H.C.’s blood level to a reasonable degree of scientific certainty would have been .235 at 2:15 a.m., .220 at 3:15 a.m., and .205 at 4:15 a.m. on the early morning of the alleged assault.

The accused’s friend, Nicholas Reschke also testified. He said he and the accused (Kurt Foster) were out drinking and had booked a room at the Residence Inn to stay overnight. When they were leaving the bar, they saw a taxi outside. Once they got into the taxi, they noticed a woman (later identified as H.C.) in the front passenger’s seat who was crying and upset about something. He said while H.C. initially appeared angry and upset, her mood improved after some exchange and small talk between them. He testified he assumed she had been drinking, given she was out late at night, but she was able to carry a conversation and seemed okay-she was following the conversation and was not slurring her speech.

Once the taxi arrived at the Residence Inn to drop Reschke and Foster off, H.C. asked them if they had any champagne in their room. Reschke responded, informing her they had some beer but no champagne. When asked about his observations of H.C. in the taxi, he said aside from her apparent anger when they initially got in the cab, she seemed okay.

Surveillance video was played for the jury showing the men and H.C. walk from the taxi and into the hotel. Reschke testified when entering the hotel lobby, H.C. did not seem unsteady on her feet and required no assistance with walking.

Reschke further testified that around 3 a.m., all three went up to the hotel room, which had a bedroom with two beds and a couch in a separate living area. He said he offered H.C. a Coors Light and she took a few sips. He testified H.C. did not have any difficulty taking her coat off or sitting down. He said she was not stumbling or falling and there was no indication she was intoxicated. He drank a beer and then went to bed. While he was getting ready to sleep in the bedroom, Foster came in to take a blanket off the bed to give to H.C. He said he fell asleep soon after Foster took the blanket.

The next morning, he and Foster woke up to the sound of a snow plow truck removing snow and Reschke went to the living area where H.C. was asleep on the couch with a blanket over her. He woke her up and told her they all had to leave soon. She responded, “Okay.” He then went back to the bedroom to gather his belongings. H.C. fell back asleep and he had to wake her up a second time. Upon awakening this second time, she asked where her friends were. He told her she came to the hotel by herself. She then left the hotel room. He stated H.C. did never appeared disheveled, hungover, or confused.

Foster testified consistently with Reschke in that the two were out and took a cab home. When they noticed an unknown female -H.C.- in the front passenger seat of the taxi talking to the driver, she appeared to be upset and crying but her speech seemed normal. On the way to their hotel, H.C. asked the two if they had any champagne at their hotel. They said they did not drink champagne but they had Coors Light in the room and offered to H.C. that she could sleep on their hotel couch. When they arrived, she decided to go with them into their hotel and she exited the taxi first and the boys followed.

Foster said once they got to the hotel room, he and Reschke gave H.C. a beer and they engaged in conversation. He testified H.C. had a few sips of the beer and participated in the conversation, speaking normally. He said she appeared to have been drinking but did not appear to be highly intoxicated to him. After 20 to 30 minutes and when Reschke decided to go to bed, Foster said he realized for the first time H.C. was planning to spend the night there when she tried to get comfortable on the couch and take off her boots.

Foster said he thought it was odd that a stranger would spend the night in his hotel room but nonetheless, went into his bedroom to grab a blanket for H.C. When he returned, she was still struggling with her zipper in her high-knee boots and asked him to help her with unzipping them.

When he tried helping her unzip her boots, he was in front of her on one knee and H.C. started rubbing her leg on his shoulder and said, “Let’s have some fun.” Foster responded, “No, I’m a married man.” He testified H.C. responded, “I don’t care,” and then proceeded to pull her pants and underwear down to the top of her boots and asked him to kiss her “down there.” Foster said he did it for a few minutes but stopped because his knee was hurting. When he stood up, H.C. grabbed his penis on the outside of his pants. Foster testified he could not resist the temptation and proceeded to pull his pants down and had intercourse with her, which only lasted for a short time because he could not perform. He put his pants back on and told her he was going to bed. He went to bed and fell asleep.

Foster testified the next morning, he woke up to the sound of a snow plow truck and realized he and Reschke had snowplow jobs to do themselves so they needed to leave quickly. He said he used the bathroom while Reschke went to wake up H.C. He testified he waited in the bathroom because he did not want to see her for what had happened. After H.C. left the room, the men also left.

Ultimately, Foster was convicted of both counts of rape in violation of R.C. 2907.02(A)(1)(c) and he was sentenced to six years in prison.

The Appellate Court’s Ruling

Foster appealed his sentence to the 8th District Court of Appeals. He appealed the decision and sentence on many grounds, the most important of which was insufficient evidence.

When a court of appeals reviews a sufficiency of the evidence challenge, it considers whether all of the evidence introduced at trial, if believed, would convince the average mind of the defendant’s guilt beyond a reasonable doubt.

The Appellate Court determined that all of the facts and evidence presented at trial, assuming they are true, were insufficient to support a conviction and reversed his rape convictions.

The Appellate Court’s Analysis

The Appellate Court noted Ohio’s rape statute under 2907.02(A)(1)(c) is not intended to criminalize sexual conduct resulting from an alcoholic or drug-induced state of lowered inhibitions. The statute’s purpose is to criminalize individuals who take advantage of others when they know or should know another person is substantially impaired such that he or she is unable to resist the sexual conduct or consent to it.

The Court focused on the law’s definition of substantial impairment, which is “a present reduction, diminution, or decrease in the victim’s ability either to appraise the nature of her conduct or to control her conduct.”

The Court noted substantial impairment is not equivalent to intoxication. In fact, it stated every alcohol consumption does not lead to substantial impairment. Further, the Court stated not every person who engages in sexual conduct with a voluntarily intoxicated person is culpable of rape under 2907.02(A)(1)(c).

The Court emphasized the fact that even though evidence introduced was sufficient to establish H.C.’s intoxication and may have been sufficient to substantial intoxication at the time of the sexual conduct, there was no evidence to suggest Foster knew or should have known H.C. was substantially impaired.

While the prosecutor presented testimony from several individuals who interacted with H.C. in the hours leading to the sexual conduct, none of the individuals testified to observations or indications H.C. was substantially impaired. H.C. was not slurring her speech, was able to hold a conversation, and her friend testified she was tipsy and intoxicated but seemed normal. She was articulate in the taxi and did not stumble, fall, or sway when getting out of the cab. She walked without issue and without assistance into the hotel from the cab. Moreover, the Court noted an individual who is blacked out may walk, talk, and fully perform ordinary functions without others being able to tell that he or she was blacked out.


This case obviously presents a sensitive issue but is a good reminder that mixing drugs and/or alcohol with sexual activity is risky for everyone involved. The Court, however, applied the law correctly to this set of facts. Intoxication does not equate to substantial impairment; however, substantial impairment itself is not enough-the defendant must know or have reasonable cause to believe the other person is substantially impaired in order to be convicted of rape under the substantial impairment rape statute.

Every case is different, but in this case, the Court got it right. There was simply insufficient evidence Mr. Foster knew or should have known H.C. was substantially impaired and relied upon her representations when engaging in what he had reason to believe was consensual activity.

If you or someone you know has been accused of or charged with a sex crime, do not speak to anyone about the allegations- especially the alleged victim or the police. Instead, call an experienced criminal defense attorney immediately. The experienced criminal defense attorneys at Rittgers Rittgers & Nakajima would be happy to meet with you to discuss your situation. Feel free to contact us at our office.