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Colorado Criminal Law – Understanding Drug Induced – So Called “Incapacitated” – Sexual Assault

After almost 40 years in the field of Colorado Criminal Law – I believe that to formulate a defense requires understanding not only the law – but the forensic and behavioral science that underlies the government’s thinking in support of such accusations as the charge of “Date Rape” in Colorado. This article addresses the concepts and typology of an accusation of Drug Induced Date Rape.

To defend allegations of criminal conduct as serious as these requires an almost constant study of the most recent forensic and behavioral science avilabel as well as a thorough understanding of the law based on decades of courtroom experience. H. Michael Steinberg – Colorado Criminal Defense Lawyer Specialist

In Colorado the law regarding Sexual Assault on an impaired person is summarized in the following statute:

18-3-402. Sexual assault

(1) Any actor who knowingly inflicts sexual intrusion or sexual penetration on a victim commits sexual assault if:

(a) The actor causes submission of the victim by means of sufficient consequence reasonably calculated to cause submission against the victim’s will; or

(b) The actor knows that the victim is incapable of appraising the nature of the victim’s conduct;

(d) At the time of the commission of the act, the victim is less than fifteen years of age and the actor is at least four years older than the victim and is not the spouse of the victim; or

(e) At the time of the commission of the act, the victim is at least fifteen years of age but less than seventeen years of age and the actor is at least ten years older than the victim and is not the spouse of the victim; or

(f) The victim is in custody of law or detained in a hospital or other institution and the actor has supervisory or disciplinary authority over the victim and uses this position of authority to coerce the victim to submit, unless the act is incident to a lawful search; or

(g) The actor, while purporting to offer a medical service, engages in treatment or examination of a victim for other than a bona fide medical purpose or in a manner substantially inconsistent with reasonable medical practices; or

(h) The victim is physically helpless and the actor knows the victim is physically helpless and the victim has not consented.

(2) Sexual assault is a class 4 felony, except as provided in subsections (3), (3.5), (4), and (5) of this section.

(3) If committed under the circumstances of paragraph (e) of subsection (1) of this section, sexual assault is a class 1 misdemeanor and is an extraordinary risk crime that is subject to the modified sentencing range specified in section 18-1.3-501 (3).

(3.5) Sexual assault is a class 3 felony if committed under the circumstances described in paragraph (h) of subsection (1) of this section.

(4) Sexual assault is a class 3 felony if it is attended by any one or more of the following circumstances:

(a) The actor causes submission of the victim through the actual application of physical force or physical violence; or

(b) The actor causes submission of the victim by threat of imminent death, serious bodily injury, extreme pain, or kidnapping, to be inflicted on anyone, and the victim believes that the actor has the present ability to execute these threats; or

(c) The actor causes submission of the victim by threatening to retaliate in the future against the victim, or any other person, and the victim reasonably believes that the actor will execute this threat. As used in this paragraph (c), “to retaliate” includes threats of kidnapping, death, serious bodily injury, or extreme pain; or

(d) The actor has substantially impaired the victim’s power to appraise or control the victim’s conduct by employing, without the victim’s consent, any drug, intoxicant, or other means for the purpose of causing submission

(5) (a) Sexual assault is a class 2 felony if any one or more of the following circumstances exist:

(I) In the commission of the sexual assault, the actor is physically aided or abetted by one or more other persons; or

(II) The victim suffers serious bodily injury; or

(III) The actor is armed with a deadly weapon or an article used or fashioned in a manner to cause a person to reasonably believe that the article is a deadly weapon or represents verbally or otherwise that the actor is armed with a deadly weapon and uses the deadly weapon, article, or representation to cause submission of the victim.

(b) (I) If a defendant is convicted of sexual assault pursuant to this subsection (5), the court shall sentence the defendant in accordance with section 18-1.3-401 (8) (e). A person convicted solely of sexual assault pursuant to this subsection (5) shall not be sentenced under the crime of violence provisions of section 18-1.3-406 (2). Any sentence for a conviction under this subsection (5) shall be consecutive to any sentence for a conviction for a crime of violence under section 18-1.3-406.

(II) The provisions of this paragraph (b) shall apply to offenses committed prior to November 1, 1998.

(6) Any person convicted of felony sexual assault committed on or after November 1, 1998, under any of the circumstances described in this section shall be sentenced in accordance with the provisions of part 10 of article 1.3 of this title.

Incapacitated sexual assault MEANS any unwanted sexual contact occurring when a victim is unable to provide consent or stop what is happening because she is passed out, drugged, drunk, incapacitated, or asleep, regardless of whether the perpetrator was responsible for her substance use or whether substances were administered without her knowledge.

Incapacitated sexual assault into four subtypes. The first two subtypes pertain to sexual assaults achieved when the victim is given—without her knowledge or consent—a substance that physically incapacitates her and makes her incapable of providing consent.

DFSA

(drug-facilitated sexual assault) is defined as unwanted sexual contact occurring when the victim is incapacitated and unable to provide consent after she had been given a drug without her knowledge or consent. Incidents classified as DFSA are those in which the victim is certain that she had been drugged.

In contrast, SDFSA (suspected drug-facilitated sexual assault) is defined as incapacitated sexual assault occurring after the victim suspects that she had been given a drug without her knowledge or consent.

The third subtype of incapacitated sexual assault is termed alcohol and/or other drug- (AOD-) enabled sexual assault. This subtype includes unwanted sexual contact occurring when the victim is incapacitated and unable to provide consent because of voluntary consumption of alcohol or other drugs.

Finally, to distinguish between incapacitation due to the effects of AOD (administered either coercively or voluntarily) and other types of incapacitation, we include a fourth subtype of incapacitated sexual assault in our typology. Other incapacitated sexual assaults capture the remaining, and likely uncommon, situations in which a victim can be incapacitated, such as by being asleep or unconscious

Drug-facilitated date rape

Drug-facilitated date rape is the use of drugs to assist the attacker in a rape. The drug can be any substance that is physical or mind altering.

Drug facilitated sexual assault (DFSA), which is considered an umbrella term for crimes such as drug-facilitated date rape, differs from many rapes in that it is not typically a crime of physical violence but rather of sexual hedonism and entitlement.

While the phenomenon is not new DFSA emerged as public concern that mostly occurred in social settings. Alcohol was the original date rape agent.

Rohypnol

…(trade name for Flunitrazepam), is commonly known as a “club drug” because it is usually used in dance clubs and raves. Street names include: Circles, Forget Pill, LA Rochas, Lunch Money, Mexican Valium, Mind Erasers, Roach, Roopies, Roofies, R-2, Roches Dos, Rope, Rophies, Rapeies, Stupifi, Shays, etc.

Ketamine

…is commonly known as: Black Hole, Bump, Cat Valium, Green, Jet, K, Kit Kat, Psychedelic heroin, Purple, Special K, Super Acid, Keller, Super C, etc.

GBL or GHB

….are popular because “Victims may not be aware that they ingested a drug at all. GHB and its analogues are invisible when dissolved in water, and are odorless. They are somewhat salty tasting, but are indiscernible when dissolved in beverages such as sodas, liquor, or beer.”

Also, GBL can pass through the skin so the flavor is irrelevant. In some cases, GBL has been allegedly administered by applying it to jewelry that is designed to break (presumably to prevent overdose).

The Typology of Drug Facilitated Sexual Assault Includes

Setting:

Typology is best distinguished by the setting in which the attack takes place (e.g. Workplace Setting, Healthcare Setting or Social Setting).

Accomplices and Conspiracies:

There may be multiple perpetrators who conspire to commit the crime. Particularly in social settings, confirmed cases have involved male and female couple collaborators, siblings and friends.

Intrafamilial DFSA:

Many intrafamilial DFSA’s often go unreported. Typically there is a power differential that prevent victims from speaking out.

Male-on-male Offenses:

Such cases occur nearly exclusively in social or school settings. Often the crime reflects the perpetrators conflicted feelings about private same-sex thought and desires.

Sexual Deviance or Sexual Hunters:

This group often includes those who are incompetent at finding sexual partners and those who have sexual fantasies of dominance.

Here is Some Of The Most Recent Research Behind College Based Sexual Assaults

Assailant Characteristics

The first set of contextual variables pertain to characteristics of the assailant.

As shown in the exhibit, less than 15% of physically forced and incapacitated victims were assaulted by more than one person; however, the groups did not differ significantly. Regarding the relationship between the victim and the assailant and keeping in mind that respondents could select more than one category for this question, it is evident that a small proportion of victims reported being assaulted by someone they had never seen or talked to before.

Victims of physically forced sexual assault were much more likely than incapacitated assault victims to be assaulted by someone they had never seen or talked to (23% vs. 12%, respectively), or by a former intimate partner (20% vs. 9%, respectively). A higher percentage of incapacitated sexual assault victims were victimized by a friend. This assailant-victim relationship was reported most often by incapacitated assault victims.

Interestingly, over a quarter of incapacitated sexual assault victims reported that the assailant was a fraternity member at the time of the incident; this proportion is significantly higher than that reported by victims of physically forced sexual assault (28% vs. 14%, respectively). Also of interest is that a significantly higher proportion of incapacitated sexual assault victims (80%) than physically forced sexual assault victims (57%) reported that the assailant was white. In contract, a much higher percentage of physically forced victims (39%) reported that the assailant was black, compared to incapacitated victims (16%).

Substance Use

The vast majority of incapacitated sexual assault victims reported that the assailant had been drinking and/or using drugs before the incident.17 Differences in substance use on the part of the victim by assault type are evident in the table. Not surprisingly, the vast majority of incapacitated sexual assault victims (89%) reported drinking alcohol, and being drunk (82%), prior to their victimization. This is much higher than the proportion of physically forced victims who reported drinking (33%) and being drunk (13%) prior to their assault.

Drug use was relatively low among both groups, although a slightly higher proportion of incapacitated sexual assault victims reported having voluntarily used drugs before the incident (8% vs. 2%). For victims of either type of sexual assault who reported voluntary drug use, the most commonly used drugs were marijuana, cocaine, methamphetamine, and ecstasy.

Only victims reporting incapacitated sexual assault were asked whether they had been given a drug without their knowledge or consent immediately before the assault. A low proportion of incapacitated sexual assault only victims (4%) reported such coercive drug ingestion. Of these victims, the drugs reportedly used to incapacitate them were Rohypnol, GHB, marijuana, and ecstasy, although it is worth noting that over half of incapacitated sexual assault victims who reported coercive drug ingestion stated that they did not know which drug they were given.

Location

A surprisingly large number of respondents reported that they were at a party when the incident happened, with a significantly larger proportion of incapacitated sexual assault victims reporting this setting (58% compared with 28%). The majority of sexual assault victims of both types reported that the incident had happened off campus (61% of incapacitated sexual assault victims and 63% of physically forced sexual assault victims). A higher proportion of physically forced than incapacitated sexual assaults occurred outside. The most commonly-reported locations of either type of victimization, on and off-campus, were the victim’s or some other person’s living quarters. No other significant differences by assault type are evident.

Timing of Incidents

Substantial variability in the time of year in which sexual assault incidents took place is evident, with fall clearly being the most prevalent season for sexual assault. The largest proportion of victims (of both types of sexual assault) reported being victimized in October (20% of physically forced sexual assault victims and 16% of incapacitated sexual assault victims). Not surprising

Saturday (25% of physically forced sexual assault victims and 36% of incapacitated sexual assault victims) or Friday (22% of physically forced sexual assault victims and 26% of incapacitated sexual assault victims).

Also not surprising is that the majority of victims reported being assaulted during the hours from midnight to 6:00 a.m.; the prevalence of this is significantly higher among incapacitated assault victims. However, although victims of both types are most likely to be assaulted from midnight to 6:00 a.m., a significantly higher proportion of physically forced victims are assaulted during earlier hours (noon to 6:00 p.m. and 6:00 p.m. to midnight). Forty-five percent of physically forced victims, compared to 13% of incapacitated victims, reported being assaulted between 6:00 p.m. and midnight.

Weapon Use and Injuries

Very few victims of either type of sexual assault reported that the assailant had or claimed to have a weapon. The proportion reporting assailant weapon possession was higher for victims of physically forced sexual assault than incapacitated sexual assault. The proportion of victims reporting that they had sustained injuries in the assault is relatively low, although, not surprisingly, a greater proportion of physically forced sexual assault victims (18%) reported being injured than incapacitated sexual assault victims (3%). Among those who sustained injuries, the most prevalent were emotional or psychological injury; injury from the sexual contact; and bruises, black-eyes, cuts, scratches, or swelling.

Perception of Any Incidents as Rape

When asked if they considered the incident to be rape, a significantly higher percentage of physically forced victims (40%) answered affirmatively, compared to only 25% of the incapacitated assault victims. Because our classification of sexual assault includes both battery (unwanted touching achieved by physical force or incapacitation of the victim) and rape (vaginal, oral, anal, or object penetration achieved by physical force or incapacitation of the victim), not all victims were indeed raped. When subsetting to victims who were raped, 64.6% of physically forced rape victims and 37.8% of incapacitated rape victims considered the incident to be rape.

Reporting and Nonreporting

Family Member or Friend

The first category of disclosure pertains to someone close to the victim. The majority of victims of both types of assault reported that they told someone such as a family member, friend, roommate, or intimate partner. A slightly higher proportion of physically forced sexual assault victims (70%) than incapacitated sexual assault victims (64%) reported this type of disclosure, although these percentages were not significantly different.

Victim’s, Crisis or Health Care Center

A very small percentage of victims reported that they contacted a victim’s, crisis, or health care center after the incident. Once again, this type of disclosure was more prevalent among physically forced sexual assault victims (16%) than incapacitated sexual assault victims (8%). Because of the small number of victims who reported contacting this type of service agency, the data on follow-up questions pertaining to this experience should be interpreted with caution. A significantly higher percentage of physically forced victims reported to a crisis center or victim’s services program, or counselor or therapist not affiliated with their university.

Although alleged physically forced sexual assault victims were most likely to contact a counselor or therapist not affiliated with the university, incapacitated sexual assault victims were most likely to contact a doctor’s office or medical facility affiliated with the university. Just over three-fourths of alleged physically forced sexual assault victims who contacted a victim’s, crisis, or health care center reported receiving a physical or sexual assault examination, and just half of incapacitated sexual assault victims reported receiving such an examination.

Most commonly, victims of alleged physically forced sexual assaults contacted a victim’s, crisis, or health care center after 24 hours but within 1 week of the incident. The vast majority of victims who contacted a victim’s, crisis, or health care center were satisfied with the way their reporting was handled…

*This document is a research report submitted to the U.S. Department of Justice. This report has not been published by the Department.