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

P R OSECUTING A LCOHOL-FACILITATED S EXUAL A SSAULT
Defendants in sexual assault cases are not easy to cross-examine.They have
a substantial interest in lying and may actually believe their own lies. Often,
they will minimize and rationalize. In addition, they have generally spent a
good deal of time thinking about the case and rehearsing. Many sex
offenders are very accomplished at presenting a façade designed to hide the
truth about themselves. 93 “Sex offenders have secretive and manipulative
lifestyles, and many of their sexual assaults are so well planned that they
appear to occur without forethought.” 94 “The skills used to manipulate victims
have also been employed to manipulate criminal justice officials.” 95
Consensus based cross-examination may be particularly effective when
the defense is consent. In this scenario, the prosecutor should attempt to
get the defendant to agree to as many of the facts of the case as possible.
Ideally, the prosecutor will be able to argue in closing “the only fact with
which he disagrees is the one which makes him guilty–whether or not
she consented.”
The following is a list of suggested topics for cross-examination.
■ Intercourse. Have the accused corroborate that the intercourse occurred.
■ Accused’s state of intoxication. Either he was very drunk (and therefore
should not be able to remember clearly what happened) or he was
sober enough to have the ability to perceive and remember (and therefore,
sober enough to know better).
■ Other illegal acts.
● Know the law–be careful!
● Drug use/possession
● Underage drinking
■ Accused is a predator. What is attractive about a really drunk woman?
A woman who is vomiting? An unconscious woman?
● Did he pour the drinks? How much alcohol was in them? Was he
trying to get the victim drunk? Nonstranger rapists frequently report
“intentionally getting the woman drunk in order to have sexual
intercourse with her.” 96
● Can you show that the defendant is hostile toward women
generally? 97 “With respect to personality traits, men who had committed
sexual assault were more hostile toward women and lower in
empathy compared with other men.” 98
32 N ATIONAL D ISTRICT ATTORNEYS A SSOCIATION