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

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
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