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Alcohol- and Drug-Facilitated Sexual Assault: a Survey of the Law Jennifer Long, JD, Charlene Whitman-Barr, JD, and Viktoria Kristiansson, JD1

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Alcohol- and Drug-Facilitated Sexual Assault: a Survey of the Law Jennifer Long, JD, Charlene Whitman-Barr, JD, and Viktoria Kristiansson, JD1 STATUTin ReviewES August 2016 Alcohol- and Drug-Facilitated Sexual Assault: A Survey of the Law Jennifer Long, JD, Charlene Whitman-Barr, JD, and Viktoria Kristiansson, JD1 INTRODUCTION This in Review2 will summarize the laws addressing the sexual assault of an intoxicated victim. It will compare the elements required in each jurisdiction and describe their applicability to criminal conduct. Because many of these Statutes current rape and sexual assault laws. statutes do not specifically reference intoxication, they are sometimes overlooked in the national conversation around Sexual activity with an individual who has voluntarily consumed drugs or alcohol is not in itself6 criminal. Intoxication, whether by alcohol, drugs, or a combination of both may impact an individual’s ability to appraise danger, capacity to communicate a lack of consent, and ability to perceive or remember 7all or parts of an assault. Even where a victim’s- intoxication results from alcohol consumption alone, experts have described its effects as devastating with one noting: actions“If recreational associated drugs with were consent tools, (e.g. alcohol would be a sledgehammer.” A sexual assault occurs where a victim’s3 or inability intox ication impairs cognitive and/or physical4 functions to such an extent that5 it prevents one’s ability to consent or one’s , the ability to communicate unwillingness to engage in sexual activity Perpetratorsto appraise the use nature alcohol of conduct,and drugs or to inability facilitate to sexual control assault one’s byconduct). openly or surreptitiously administering intoxicants to crimes.their victims, Perpetrators or by targeting use alcohol victims to decrease who are the too chance intoxicated that victimsby drugs will and/or report alcohol their rape to consent. because Offenders they will exploit self-blame. their8 victims’ intoxication creating uniquely effective weapons that help them commit and escape accountability for their 9 - holThey than count their on male the systemcounterparts. and society10 disbelieving or blaming victims for their assaults, and labeling rapes as “drunk sex.” These realities are particularly significant in light of the fact that women are more vulnerable to the effects of alco While the absence of laws covering the assault of a voluntarily intoxicated victim is often cited as a barrier to prosecut- 11 the laws in all 58 U.S. jurisdictions12 allow for the prosecution of sexual assault cases where the victim was voluntarily intoxicated.13 ing sexual assault cases, - The language in some statutes, however, may not always include the assaultive assault.conduct14 relevant to a specific case. Additionally, some sexual assault statutes do include an element requiring the vic thistim’s STATUTES intoxication in toReview be caused synthesizes by a perpetrator, the similarities without and the distinctions victim’s knowledge, among the for statutorythe purpose language of perpetrating and summarizes a sexual Because language among these statutes is not consistent and may not specifically refer to intoxicated victims,- AEquitas’ more comprehensive analysis of rape and sexual assault laws covering alcohol- and drug -facilitated sexual as briefsault discussioninvolving penetration of how the instatutory all jurisdictions language in applies the country. to the Partcharging I of this and survey prosecution looks at of both cases. voluntary15 and involuntary intoxication statutes and describes how these statutes’ elements address intoxication. Part II of this survey includes a 1 STATUTES in Review August 2016 PART I: SURVEY OF STATUTES APPLICABLE TO SEXUAL ASSAULT OF AN INTOXICATED VICTIM This section breaks down the sexual assault penetration statutes into two categories – those that cover victims who were (A) voluntarily intoxicated and (B) involuntarily intoxicated. Note that most jurisdictions have more than one type of statute. A. Voluntary Intoxication Sexual Assault Statutes willful conduct (i.e. Voluntary intoxication sexual assault statutes cover assaults where the victim’s intoxication was a result of her/his own not reference intoxication but instead describe the effects of , intoxication not attributable to the perpetrator). There are two types of these statutes: (1) those e.g. that explicitly reference intoxication and (2) those that do “intoxication” ( , incapable of making a reasonable that explicitly judgement reference around intoxicationone’s conduct). alcohol or drugs or language requiring the prosecution to show that the victim was too intoxicated to consent.16 These Twenty-seven (27) jurisdictions have statutes , including references to the use of 17 18 or in statutes outlining the defense of consent.19 statutes address the sexual assault of voluntarily intoxicated victims in standalone provisions, within the definitions of consent or ineffective consent, no specific ref- In every jurisdiction, there are statutory elements that describe typical characteristics of intoxicated victims resulting erence to intoxication from their cognitive and/or physical impairments. Fifty-seven (57) jurisdictions have statutes that make but instead focus on the effects of drugs and alcohol. The fifty-eighth jurisdiction, Georgia, does not have a statutory provision describing the effects of intoxication, but has long-standing case law holding that “sexual 20 intercourse with a woman whose will is temporarily lost from intoxication, or unconsciousness arising from using drugs Drawingor other cause,clear lines or sleep, from isthe rape.” statutory language to the correlating impairment to which it may apply is not always easy or possible.21 - 22 Jury instructions and In some instances, the impairment implicates both cognitive and physical functions. In others, the case law or com case law interpreting a statute provide further guidance clarifying conduct that is included23 or excluded by a relevant statute. mentary may define statutory language differently than how the terms are commonly understood. Common• Incapable statutory of language consent; 24used in voluntary intoxication statutes is listed below: - • Incapable of appreciating/appraising/understanding the nature or consequences of, or incapable of making rea sonable judgments around, the conduct; • Unable to resist physically or mentally/incapable of controlling one’s own conduct; • Unconscious, unaware, or renders the person unaware of the conduct; - • Physically helpless, which is defined in many jurisdictions’ statutes to include victims who are unconscious, un aware, or physically incapable of communication or resistance. 2 STATUTES in Review August 2016 B. Involuntary Intoxication Sexual Assault Statutes 25 - alsoThirty-seven include an (37) element jurisdictions requiring have the intoxicationstatutes that to specifically be caused cover in order a sexual to prevent assault resistance where the or tovictim otherwise became complete intoxicat an assaulted without her/his consent. Of the 37, Colorado, Delaware, Massachusetts, North Dakota, Oklahoma, and Pennsylvania- stance (e.g. 26 . Involuntary intoxication statutes cover sexual assaults of victims who were: administered an intoxicating sub , alcohol or drugs),27 that and impacted some require their that cognitive the intoxicant or physical prevented ability, the by thevictim perpetrator from resisting. or at the28 These perpetrator’s statutes maydirection, include without perpetrators their consent. who caused Some of these statutes require that the intoxicant wasknew administered that someone for elsethe purposecaused the of perpetrating a sexual29 assault, the victim’s intoxication and perpetrators who PARTvictim’s II:intoxication. APPLICATION OF THE LAW TO PROSECUTION alcohol- and/or drug-facilitated sexual assaults can be prosecuted.30 If a jury is presented with credible testimony and As mentioned above, the criminal code of every U.S. jurisdiction offers a number of charges under which perpetrators of mostfacts thatoften meet cause the such criminal verdicts. elements, but ultimately finds a defendant not guilty, state statutes are not to blame. Rather, general misconceptions about sexual assault, victim blaming, and minimization of the offender’s culpability are what Proving the Elements of Voluntary Intoxication Statutes - consequencesIn many jurisdictions, of her/his alcohol- actions. and31 drug -facilitated sexual assaults have long been prosecuted under the theory that con thesent most is ineffective common when defense. the32 victim is intoxicated to the extent that s/he is unable to make reasonable judgments as to the Regardless of the exact theory articulated to meet the statutory elements, consent is As a result, evidence of the victim’s intoxicationtoo intoxicated plays toa crucial consent role.33 in determining whether or afternot the ingestion victim consented, of alcohol includingor drugs is whether determined s/he bywas introducing able to consent, evidence to sexual of the activity. facts and There circumstances is no bright-line surrounding test, such the as a per-se blood alcohol level, for determining whether a victim was A victim’s ability to consent victim’s behaviors, including, but not limited to: the amount of alcohol or drugs the victim ingested and over what period- of time, the victim’s physical stature (height and weight), the victim’s level of consciousness, the impact of alcohol on the victim’s cognitive abilities, the impact of alcohol on the victim’s physical abilities, evidence of impairment in victim’s deci sion making, whether and in
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