The higher courts have repeatedly found the lower

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act should be an integral part in determining guilt so as to avoid a miscarriage of justice. The Higher courts have repeatedly found the lower courts to have erred when they have not included a knowledge or mens rea requirement in their jury instructions for statutes like this. Conclusion Overall, both instructions have their own merits. Neither side is overtly incorrect or misleading. While looking to the recent reforms in the system though it is most likely to rule in favor of the defense. The courts, while attempting to be progressive also are seeking to protect the rights of those accused. They had to reasonably know the person they are having or attempting to have intercourse with is too intoxicated. This is a narrower view of the statute and adds language and intent to the statute that is not explicitly present but that protects people and the courts from judicial waste and accidental prosecutions. By having a narrower definition and adding in the language for a mens rea requirement there is also less chance, by the courts reasoning, for there to be a miscarriage of justice. There is also merit to the prosecutions jury instruction however as if two people are partying both persons may have impaired judgment and alcohols effect different people differently. To include a requirement for knowledge or Mens Rea to a statute where it is not already explicitly stated would require that these two persons who were partying be aware enough to know the other person is too drunk to have intercourse when they themselves may be impaired. It also adds language to a statute where there is no language present, assuming a legislative intent that may have never been there during the creation of the statute. The Courts, both higher and lower, have a history though. They have a strict and explicit tendency towards incorporating a knowledge requirement, a Mens Rea requirement into statutes that do not explicitly state such a requirement but are for serious, felonious crimes.

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