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

P R OSECUTING A LCOHOL-FACILITATED S EXUAL A SSAULT
CHARGE 38
ELEMENT(S) WITNESS(ES) EVIDENCE
Defendant engages in
sexual intercourse
With another person
who is unconscious
OR physically unable
to communicate unwillingness
to an act
The primary challenge in prosecuting rape cases where the victim is voluntarily
intoxicated is that society tends to have difficulty distinguishing
between drunken sex and rape. Instead of assuming that it was probably
rape because the woman was too drunk to consent, people tend to
assume that the woman consented because she was intoxicated and simply
regretted the sexual encounter later. In these cases, the defense tends to
argue:“It’s not rape; it’s regret,” or,“It’s buyer’s remorse.” Prosecutors must
overcome the tendency to focus on and blame the victim and re-direct
the focus back to the offender’s actions, and thus on the elements of the
crime. It is the prosecutor’s job to show jurors why the case before them
is a case of sexual assault and not just drunken sex that was later regretted.
Generally, there is not a bright-line test for showing that the victim was
too intoxicated to consent, thereby distinguishing sexual assault from
drunken sex. In drunk driving cases, the prosecution can show that the
driver had a certain BAC; therefore, the driver is guilty. Sexual assault
cases involving alcohol are not as clear cut.There is not a universal BAC
at which the law or the experts agree that people are no longer capable
of consenting to intercourse. Instead, the equation involves an analysis of
the totality of the circumstances and numerous factors.The factors discussed
herein are divided into two parts: (1) general factors and (2)
predatory behavior on the part of the defendant. By analyzing these factors
and considering the totality of the circumstances, the prosecutor can
determine whether the case is sexual assault or not.
8 N ATIONAL D ISTRICT ATTORNEYS A SSOCIATION