In Pennsylvania, if both men are drunk and oral sex is performed, not once but twice, is a verdict of indeviate sexual assault proper?

Question

There is a situation in which fratboy A and fratboy B met in a fraternity house. They became close and text message picture of penises we're exchanged. Later, at a party, fratboy A and fratboy B ended up having oral sex in which fratboy B, supposedly straight, woke up and fratboy A was performing this sex act. No action was taken in regard to fratboy B disliking the act. Life continued. At a second party, Fratboy C found out about fratboy A and fratboy B. Fratboy C also allowed fratboy A perform oral sex on him while drunk. Both fratboy B and C, being "straight" file charges against fratboy A and he ends up with 13-30 yrs in prison for these sex acts between drunk fraternity brothers. None of the text messages were admissable, even to prove sexual contact was invited. The concept of "consent" is questionable because if the "victims" were capable of remembering said incident, why is their lack of consent or simply saying NO not questioned? How is it they can maintain they are sober enough to claim rape, but not sober enough to say no? Why is it allowable for their silence to be construed as incapacitation due to inebriation, yet their claim of rape is well after the sex act is completed? Sounds like railroading to me. Does anyone have any appellate case precedent or any information about Pennsylvania law concerning sex crimes in which both parties are drunk past the point of consent or anything concerning similar cases?

If the case is already closed and sentencing has been given... 13-30 years in prison and Megans Law registration... what grounds for appeal may be possible? The gay boy, fratboy A, has no criminal history. He came out at the beginning of college and is inexperienced and naive. Does he deserve his life to be ruined? Please help me figure this out.

Answer 1

A defendant cannot claim voluntary intoxication as a defense (Commonwealth v. Henry, 524 PA 135). The relevant rape law, 18 Pa. Cons Stat 3123(a)(4), defined involuntary deviate sexual intercourse as deviate sexual intercourse with a complainant

where the person has substantially impaired the complainant's power to appraise or control his or her conduct by administering or employing, without the knowledge of the complainant, drugs, intoxicants or other means for the purpose of preventing resistance

(any form of anal or oral is deviate sexual intercourse). A further condition would be the case where the complainant

is unconscious or where the person knows that the complainant is unaware that the sexual intercourse is occurring

Other 'non-consent' grounds would include forcible compulsion or threat of force, or mental disability rendering him incapable of consent (also, under-age relations).

The unconsciousness clause includes situations of intermittent unconsciousness under intoxication, see Commonwealth v. Erney, 548 PA 467. In that case,

the victim was able to describe with considerable detail certain sexual activity giving rise to these charges, including penetration and intercourse

That is, it is not required that the defendant remain unconscious the whole time.

As far as an appeal is concerned, that would have to be based on defense counsel's objection to a court ruling (which was overruled). There is also the possibility of arguing ineffective counsel (for instance if counsel clearly should have objected and failed to). Defendant's attorney, or new attorney, could inform defendant of the viability of such an appeal. If the attorney failed to effectively discredit the reliability of the complaining witnesses, that would not be grounds for appeal.