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Intoxication is a mental state in which a person’s normal capacity to act or reason is inhibited by alcohol or drugs. Intoxication is not in and of itself a defense to a crime, but it may be raised to negate the mens rea element of criminal activity and in that sense excuse criminal liability.

International Law

The Rome Statute of the International Criminal Court provides for an intoxication defense. Article 31(1)(b) provides that a person shall not be criminally responsible if, at the time of that person's conduct:

"The person is in a state of intoxication that destroys that person's capacity to appreciate the unlawfulness or nature of his or her conduct, or capacity to control his or her conduct to conform to the requirements of law, unless the person has become voluntarily intoxicated under such circumstances that the person knew, or disregarded the risk, that, as a result of the intoxication, he or she was likely to engage in conduct constituting a crime within the jurisdiction of the Court;"[1]

In practice, this defense will often be restricted to low-ranking officers and soliders and not to military or political leaders who are implicated in international crimes.[2]

Country Specific Applications

Sri Lanka

Similar to the unsound mind defense, the Sri Lankan Penal Code excuses a person from criminal liability for otherwise criminal actions, if by reason of intoxication, the person was “incapable of reason of knowing the nature of the act,” provided that the intoxication was involuntary.[3] A person who is voluntarily intoxicated will still be criminally liable for his actions in a specific intent crime “if he had the same knowledge as he would have had if he had not been intoxicated….”[4] This opens the door to a factual inquiry into an intoxicated person’s state of mind at the time of the criminal actions. Consent cannot be given under any of the Penal Code sections by an intoxicated person if he is “unable to understand the nature and consequence of that to which he gives his consent,” again opening a factual inquiry into the mental state of the intoxicated person.[5]

United States

Some jurisdictions recognize the intoxication defense. There is a vital distinction, however, between voluntary and involuntary intoxication.

Voluntary intoxication does not excuse criminal conduct, but it can be used under limited circumstances to negate the mens rea element of criminal activity. There is a further distinction between general intent crimes, where the actor intends merely to perform an action but not necessarily the one that resulted, and specific intent crimes, which require proof that the actor intended to perform the specific criminal act charged.[6] Voluntary intoxication, including that resulting from habitual drug or alcohol consumption, is normally not a defense to general intent crimes like assault and battery. However, voluntary intoxication may be used as proof that the defendant did not mean to perform a specific criminal act, such as murder, and can serve as evidence to negate the mens rea element of specific intent crimes.[7] The voluntary intoxication defense is often asserted in homicide cases to disprove pre-meditation, deliberation, or intent to kill on behalf of the defendant.[8]

Involuntary intoxication is the result of coerced intoxication, mistake as to the nature of substance consumed, intoxication from prescribed medication, or pathological intoxication. In common law, it could excuse criminal liability of any resulting actions by the defendant.[9] Some jurisdictions treat involuntary intoxication like temporary insanity, a diminished capacity defense.

Model Penal Code § 2.08(4)-(5) distinguishes three types of intoxication: voluntary, pathological, and involuntary. Voluntary intoxication can serve as a defense to criminal conduct if it negates an element of a crime, usually mens rea. The Model Penal Code does not distinguish between specific and general intent crimes so the mens rea defense is applied broadly. In crimes with a “reckless” element, however, the defense is not available if, as a result of the voluntary intoxication, the defendant was not conscious of a risk that he would have been had he not been intoxicated. Both pathological and involuntary intoxication may serve as an affirmative defense.

See Defenses