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«Thomas J. Charron President Roger Floren Chief of Staff Jennifer Gentile Long Director, National Center for the Prosecution of Violence Against Women ...»

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National District Attorneys Association

American Prosecutors Research Institute

99 Canal Center Plaza, Suite 510

Alexandria,VA 22314


Thomas J. Charron


Roger Floren

Chief of Staff

Jennifer Gentile Long

Director, National Center for the Prosecution of Violence Against Women

David LaBahn

Director, NDAA Research and Development Division

2007 by the American Prosecutors Research Institute, the research and development division of

the National District Attorneys Association.

This project was supported by Grant No. 2004-WT-AX-K047, awarded by the Office on Violence Against Women, Office of Justice Programs, United States Department of Justice.This information is offered for educational purposes only and is not legal advice.The points of view, opinions, findings, conclusions, and recommendations expressed in this publication are those of the author and do not necessarily reflect the official position of the Office on Violence Against Women, the U.S. Department of Justice, or the National District Attorneys Association and the American Prosecutors Research Institute.


Prosecuting Alcohol-Facilitated Sexual Assault August 2007 Teresa P. Scalzo


OF v Acknowledgments 1 Introduction 3 Overview of Toxicology 5 Three-Step Process Step 1: Making the Charging Decision Analyzing Consent and Distinguishing Rape from Drunken Sex: General Factors Analyzing Consent and Distinguishing Rape from Drunken Sex: Defendant's Predatory Behavior Step 2: Analyzing Credibility and Corroboration Actual Credibility Ability To Perceive Ability To Remember Existence of Corroborative Evidence Victim Likeability Step 3: Trying the Case Offender-Focused Prosecution Pretrial Motions Working with the Victim Voir Dire Witness Order Direct Examination of the Victim Medical Evidence Experts on Victim Behavior iii N DA A


OF Experts on Intoxication Cross-Examination of the Defendant Overcoming Defenses – General Overcoming the Blackout vs. Pass Out Defense 41 Conclusion 43 Endnotes 51 Appendix A – Sample Voir Dire Questions 59 Appendix B – Sample Questions for Use When Introducing Expert Testimony on Intoxication 63 Appendix C – Sample Cross-Examination Worksheet 65 About the Author

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The author wishes to thank the following individuals who contributed to the development of this document either directly or indirectly by sharing their wisdom on sexual assault prosecution: Jennifer Long, Director, National Center for the Prosecution of Violence Against Women at the National District Attorneys Association (NCPVAW); Erin Gaddy, Assistant Director, Elder/Disability Program, National College of District Attorneys;Viktoria Kristiansson, Senior Attorney, NCPVAW;

Stephanie DiPietro; Katherine Seitz, law student, Catholic University of America Columbus School of Law; Lieutenant Commander Kenneth Ian, United States Navy; Major Jeffrey Lippert, United States Army; Marc LeBeau, Federal Bureau of Investigation; Lieutenant Scott Herman, United States Coast Guard; the faculty of the National Institute for the Prosecution of Sexual Violence; the faculty of Sexual Assault Trial Advocacy at the National Advocacy Center; Investigator Stephen Malitzki of the Bethlehem Township Police Department; Jenifer Markowitz, ND, Program Consultant, DOVE Program; and District Attorney Ric Hertel, Ripley County, Indiana.


Widespread anecdotal evidence indicates that the majority of rape and sexual assault cases1 being reported to law enforcement involve alcohol use by the victim, the defendant, or both.Arriving at a definitive statistic on the prevalence of alcohol in rape and sexual assault cases is an arduous, if not impossible, task. Only a fraction of sexual victimizations are reported to police, and those that are reported rarely include accurate details on the level of perpetrator or victim intoxication.2 Statistics on the prevalence of alcohol in sexual assault cases vary.“Research with convicted rapists, community samples of sexual assault perpetrators and victims, and college student perpetrators and victims consistently finds that approximately half of sexual assaults are associated with alcohol use by the perpetrator, victim, or both.”3 Crowell and Burgess suggest that alcohol use has been reported in up to seventy-five percent of acquaintance rapes.4 Yet another estimate finds that 97,000 college students between the ages of eighteen and twenty-four are the victims of alcohol related sexual assaults each year.5 Clearly, a high percentage of rapes and sexual assaults are facilitated by alcohol.

Despite the prevalence of alcohol-facilitated sexual assault (AFSA), a number of barriers to successful prosecution exist. First, the use of alcohol in American society is quite common. Jurors may question whether the offender actually committed rape or just had consensual, albeit drunken, sex with the victim. Second, jurors may view a voluntarily intoxicated victim with skepticism or dislike, and may assume that she6 put herself in danger with her behavior. Research has demonstrated that individuals tend to view women who drink or get drunk as more sexually available, and more likely to engage in sexual acts than women who abstain from alcohol.7 Third, AFSA cases are complicated by the physical manifestations of alcohol. “Alcohol decreases inhibitions, impairs perception, and may cause amnesia and/or loss of consciousness, especially if used in conjunction with other drugs.”8 Victims may not be able to clearly perceive and/or remember the details of the assault.

This monograph discusses the prosecution of AFSA with a specific focus on AFSA when the victim is voluntarily intoxicated.9 It begins with a

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basic overview of toxicology. Next, it suggests a three-step process for prosecuting AFSA cases: (1) making the charging decision; (2) analyzing credibility and corroboration; and (3) trying the case. Finally, the monograph provides techniques for overcoming common defenses.

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OF “If recreational drugs were tools, alcohol would be a sledgehammer.

Few cognitive functions or behaviors escape the impact of alcohol, a fact that has long been recognized in literature.”10 Alcohol is a central nervous system (CNS) depressant.11 As the consumption of alcohol increases, its effect increases as well.12 “A small amount of alcohol eases tension, a large amount removes inhibitions, and a still larger amount prevents the potential victim from resisting the aggressor.”13 Alcohol impairs both cognition (the process of knowing, thinking, learning, and judging) and psychomotor skills (voluntary movement). Alcohol first affects the most recently developed parts of the brain, which are responsible for judgment, inhibition, personality, intellectual, and emotional states. As alcohol concentration increases, the impairment of psychomotor functions such as muscular coordination, balance, eye movement, etc. also increase. As alcohol concentration continues to increase, involuntary movement, such as respiration, is affected, leading to possible coma or death.14 Alcohol progressively impairs all bodily functions and abilities governed by the brain.15 Impairment increases as blood alcohol concentration (BAC) increases. BAC can be measured with a sample of blood or breath. It can also be estimated based upon a number of factors, including, among other things, what the person drank and how quickly, what the person ate, and the person’s body weight.The effects of alcohol are exacerbated when ingested in the presence of other drugs having depressant effects such as sedatives, hypnotics, anticonvulsants, some antidepressants, tranquilizers, some analgesics, and opiates.16 Due to the cognitive and motor impairments caused by alcohol, intoxicated women may be less likely than sober women to realize that the perpetrator is trying to sexually assault them.17 Moreover, “perpetrators may not need to be as physically forceful with extremely intoxicated victims because less force is required to subdue them.”18 “The desirable effect of alcohol to a sexual offender is its similarity to therapeutic and

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abused drugs such as tranquilizers, narcotics, sedatives, and hypnotics.”19 However, unlike many other drugs used to facilitate sexual assault, alcohol is legal and readily available.20 To the perpetrator of AFSA, the toxicological effects of alcohol are a useful weapon. However, to the prosecutor of AFSA, the toxicological effects of alcohol can present an extreme challenge. One reason the cases are so difficult is that most of them are reported at a time when the victim is no longer intoxicated, making it difficult to assess the victim’s BAC at the time of the incident.

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Too often, AFSA cases are lost due to improper charging decisions or investigations that are inadequate to support the charging decision that was made.The investigation and prosecution of AFSA where the victim is voluntarily intoxicated can be broken down into the following three-step process: (1) making the charging decision; (2) analyzing credibility and corroboration; and (3) trying the case.The steps are explained ad seriatim.

Step 1: Making the Charging Decision21

The most important step in successfully prosecuting AFSA where the victim is voluntarily intoxicated is making the correct charging decision.22 A prosecution cannot succeed if the charges have not been properly filed.

When beginning to analyze whether charges should be filed, the prosecutor should assume that the victim’s version of events and any supporting evidence is true and accurate. Analysis of credibility and corroboration will occur in step two, but prosecutors should start with the best possible case scenario. If the elements of the crime cannot be proven when this assumption is made, the prosecutor ultimately will not succeed at trial.

To begin, the prosecutor should determine which theory of sexual assault to allege.Three potential charging theories exist for proving sexual assault of a voluntarily intoxicated victim.23 First, sexual assault can be proven in the traditional way by demonstrating that the defendant had intercourse with a victim without consent by using force or the threat of force. In these cases, the victim is intoxicated but proof of the level of intoxication is not an element of the crime. Intoxication is only relevant to the victim’s credibility and vulnerability. Second, sexual assault can be proven by showing that the victim was unconscious at the time of the rape and therefore could not consent.24 Third, sexual assault can occur when the victim was too intoxicated to consent.25 Regarding the latter cases, the victim’s level of intoxication must be proven; however,“rape law essentially dispenses with the force requirement by finding that the force necessary for penetration is sufficient.”26 Thus, the issue at trial will generally be whether the victim was incapacitated to the point of not being able to consent.



When possible, the prosecution should proceed under a theory of rape by force as this is more consistent with the stereotype of rape believed by the public, and thus, by potential jurors.27 Moreover, the victim’s state of intoxication, which can be difficult to prove, need not be proven under this theory. Even if it could be proven, “[t]here is no bright line test that defines precisely how much alcohol or drugs result in a person’s inability to consent to sex.”28 Moving from an estimated value for the BAC to a correct statement about the degree of intoxication during the crucial period can be challenging.29 Even where the measured values are reliable and accurate, substantial variability in tolerances for alcohol, absorption rates, and clearance rates, both among individuals and within the same individual from one situation to another, complicates efforts to deduce the true extent of intoxication at the time of an arrest or accident.30 “Expert testimony would ordinarily be needed to establish that the party with the measured or inferred BAC was intoxicated during the period in question.”31 If no physical force was used but the victim was unconscious, the prosecution should proceed under the theory that the perpetrator raped an unconscious victim.When dealing with a victim who was unconscious, the primary challenge will be showing that the victim actually was unconscious for all or part of the rape. Meeting the element of penetration also will usually be a challenge with an unconscious victim. If the first two alternatives are not options, the prosecution can proceed under the theory that the victim was too intoxicated to consent.

When deciding whether to charge based on the theory that it was rape because the victim was too intoxicated to consent, it is crucial to analyze the elements of the crime being alleged. As in all cases, prosecutors must ensure that they are proceeding under a valid legal theory. Although intercourse with someone who is too intoxicated to consent always constitutes moral rape, it is only a crime if it meets the legal definition of rape. In the United States, jurisdictions define this crime in various ways, which include the following:32

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• Either statute or case law specifically outlaws having intercourse with a person who is too intoxicated to consent.33 In these states, the victim’s intoxication negates the element of consent, thereby showing that the sexual act occurred without consent.

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