§ 24.03 Voluntary Intoxication: Mens Rea
[A] In General
The most common voluntary intoxication "defense" raised in criminal trials is not an excuse defense at all, but rather is a failure-of-proof claim,27 namely that, as a result of the actor's intoxication, he lacked the mental state required in the definition of the offense.
Today, there are various common law and statutory approaches to voluntary intoxication mens rea claims, ranging from the rule that voluntary intoxication that negates an actor's mens rea is a defense to all crimes, to the opposite and increasingly popular position that it is not recognized for any offense.28 The traditional common law rule is one that distinguishes between general-intent and specific-intent crimes.29
[B] Traditional Common Law Rule
[1] Overview
In matters relating to voluntary intoxication, the common law draws a distinction between general-intent and specific-intent crimes. Indeed, as the California Supreme Court once pointed out, the concepts of "general intent" and "specific intent" "evolved as a judicial response to the problem of the intoxicated offender." The distinction, it said, represents the law's "compromise between the conflicting feelings of sympathy and reprobation for the intoxicated offender."30
[2] General-Intent Offenses
According to ordinary common law principles, and overwhelmingly followed today, voluntary intoxication is not a defense to general-intent crimes.31 For example, if D rapes V, he will not be entitled to claim that, as a result of voluntary intoxication, his mind was so clouded that he did not or could not form the intent to have sexual intercourse with V.32
This rule made sense when the intoxication doctrine was first formulated. At that time, "general intent" referred to an offense for which the only mens rea required was a culpable state of mind.33 Consistent with this meaning of the term "mens rea," the voluntary act of impairing one's mental faculties with intoxicants is a morally blameworthy course of conduct that renders the actor culpable for the ensuing harm.34 By this view, a person's voluntary intoxication proves, rather than negates, his "mens rea."
In modern language, self-induced intoxication typically constitutes reckless conduct.35 The effect of alcohol and drugs on the human body is now sufficiently well known that the law can safely assume that when an ordinary adult chooses to ingest intoxicating substances, he knows that he will suffer temporary impairment of his powers of perception, judgment, and control; therefore, he knows that he may jeopardize the safety of others while in that condition. This awareness constitutes the "general intent" required to convict.
[3] Specific-Intent Offenses
The traditional rule is that voluntary intoxication is a defense to specific-intent crimes.36 That is, a person is not guilty of an offense if, as the result of his intoxication at the time of the crime, he was incapable of forming37 or did not in fact form,38 the specific intent required in the definition of the offense.39
For example, suppose that D becomes intoxicated and sexually assaults V, a woman. He is arrested during the assault and charged with the specific-intent crime of assault with intent to commit rape. Under the common law, D is entitled to introduce evidence regarding his intoxication in order to prove that, because of his condition, he lacked the specific intent to rape V, either because he was too intoxicated to know what he was doing, or because he mistakenly believed that V was consenting.40 D is entitled to introduce this evidence because, the reasoning goes, "[w]here the legislature, in its definition of a crime, has designated a particular state of mind as a material element of the crime, evidence of intoxication becomes relevant if the degree of inebriation has reached that point" where he did not form the required intent.41
[4] Criticism of the Traditional Approach
[a] Why Draw a Distinction?
Notice the apparent anomaly with the present law. If D has nonconsensual sexual intercourse with V because he drunkenly believes V is consenting, D may not introduce evidence of his intoxication to support his mens rea claim in the prosecution of the general-intent offense of rape. However, if D is arrested before the intercourse occurs, and he is charged with the specific-intent offense of "assault with intent to rape," D may now introduce evidence of his drunkenness in order to negate the specific intent ("intent to rape").
At least in a modern penal code, in which mens rea terms are expressly set out in the definition of offenses, nothing commends this dual approach. D's intoxication is the same in both cases. He is equally drunk. He is equally culpable for becoming drunk. His mind is equally clouded. His capacity to form a mental state is equally undermined (or not undermined). And "neither common experience nor psychology knows of any such phenomenon as 'general intent' distinguishable from 'specific intent.' "42 Nor do utilitarian concerns favor separate approaches: D is equally dangerous in the two cases; and principles of general...
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