Prosecuting Alcohol-Facilitated Sexual Assault - National District ...

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P R OSECUTING A LCOHOL-FACILITATED S EXUAL A SSAULT 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. 4 N ATIONAL D ISTRICT ATTORNEYS A SSOCIATION
T HREE-STEP P R OCESS 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 Decision 21 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. NDAA 5
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Page 5 and 6: T ABLE OF C ONTENTS v Acknowledgmen
Page 7: A CKNOWLEDGMENTS The author wishes
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Page 49: C ONCLUSION Following the three-ste
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A PPENDIX A Other questions should
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A PPENDIX A Using Drugs: You will h
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Expert on Intoxication NDAA A PPEND
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A PPENDIX B • What is the effect
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A PPENDIX C CROSS-EXAMINATION WORKS
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P R OSECUTING A LCOHOL-FACILITATED
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Prosecuting Alcohol-Facilitated Sexual Assault - National District ...

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