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Contains the following key public domain (not copyrighted) U.S. Government publication(s) on one CD-ROM in both Microsoft PowerPoint and Adobe Acrobat PDF file formats:
TITLE: The Challenges of Intoxicated Victims and the Consent Defense, 61 pages (slides)
SLIDE TOPICS, SUBTOPICS and CONTENTS:
The Challenges of Intoxicated Victims and the Consent Defense
Teresa Scalzo, JD Senior Policy Advisor DoD SAPRO
OR . . . WHO NEEDS FORCE WHEN YOU HAVE ALCOHOL???
This presentation includes the creative work of others. This property is being used by permission or under claim of “fair use” (17 USC 107). This presentation was created pursuant to fair use guidelines and further use or distribution is prohibited. Objectives 1. Expand knowledge of law and policy issues involved in alcohol facilitated sexual assault cases 2. Analyze ways in which medical providers can support military victims of alcohol facilitated sexual assault 3. Provide strategies for healthcare providers to use in overcoming the challenges presented by intoxicated victims and the consent defense in sexual assault cases
MOST PREVALENT TYPE OF DFR? WHAT IS ALCOHOL FACILITATED SEXUAL ASSAULT (AFSA)? Victim is too drunk to consent for 1 of 3 reasons – Surreptitious administration by assailant Mixing of prescription or over the counter drugs with alcohol or recreational drugs Recreational use by victim Sexual assault is facilitated by alcohol
An old problem . . . . “Woe to him who gives drink to his neighbors, pouring it from the wineskin till they are drunk so that he can gaze on their naked bodies.”
-Habakkuk 2:15 (between 608 – 605 BC) General AFSA challenges Prevention What to do with the case? Collateral misconduct Underage drinking Victim intoxication / other behaviors
Challenges in the prosecution of AFSA cases ALCOHOL 82% of people 12 and older have used alcohol at least once in their lifetimes Nearly ½ of all Americans (12 and older) have used alcohol in the past month (approximately 109 million people) 42% of drug-related ED visits for 12 to 20 year olds involve alcohol Substance Abuse in Brief, April 2003, Volume 2, Issue 1, National Clearinghouse for Alcohol & Drug Information, Substance Abuse and Mental Health Services Administration, US Dept. of Health and Human Services ; SAMHSA, Jan / Feb. 06 Civilian AFSA Approximately half of sexual assaults are associated with alcohol use by the perpetrator, victim, or both.
Antonia Abbey et al., The Relationship Between the Quantity of Alcohol Consumed and the Severity of Sexual Assaults Committed by College Men, 18 J. of Interpersonal Violence No.7, 813 (July 2003).
Civilian AFSA 97,000 college students between the ages of 18 and 24 are the victims of alcohol related sexual assaults each year.
National Institute on Alcohol Abuse and Alcoholism: A Snapshot of Annual High-Risk College Drinking Consequences, http://www.collegedrinkingprevention.gov/StatsSummaries/snapshot.aspx (last visited Nov. 9, 2006). Statistics DoD does not currently track whether alcohol is involved in a sexual assault, although the individual Services might track it Must look to other studies and / or civilian data Task Force on Care for Victims In Two Military Services: Use of alcohol was associated with 50% of alleged sexual assault cases involving Service Member victims, 2002 – 2003 Available CENTCOM data: Alcohol associated with 20 – 26% of sex assault cases Provider Impact Your presenting sexual assault victim may be: Incapacitated Intoxicated Hung Over Tox Screens are VITAL! Medically: Blood alcohol over .20 significantly impairs behavior/judgment Blood alcohol near or above .40% can be lethal More on this later! Legally May help with beating “consent defense” Provider Impact History may be difficult to obtain from victim May be inaccurate given intoxication level Care and treatment impacted Forensics Pregnancy Testing STIs Provider Impact In Unrestricted Reports: Detail in your exam and history will be very important Observations entered into medical record can speak for/support victim in court (sometimes)
After your medical care…. What happens next? Proof Issues
IS IT RAPE?
THE LAW – Incapable of Consent Capacity to consent “A person is capable of consenting to an act of sexual intercourse unless she is incapable of understanding the act, its motive and its possible consequences.”
Military Judges’ Benchbook, 3-45-1 (Article 120, Note 11)
THE LAW – Incapable of Consent Force necessary “When a victim is incapable of consenting because she is intoxicated to the extent that she lacks the mental capacity to consent, no greater force is required than that necessary to achieve penetration.”
Military Judges’ Benchbook, 3-45-1 (Article 120, Note 11)
THE LAW – Incapable of Consent: Factors In deciding whether a victim consented, you must consider all of the evidence, including but not limited to: The degree of the victim’s intoxication Whether victim was conscious or unconscious Victim’s mental alertness Victims ability or inability to walk Victim’s ability to communicate coherently Whether victim may have consented to the act prior to lapsing into unconsciousness and / or falling asleep
Military Judges’ Benchbook, 3-45-1 (Article 120, Note 11)
LOOK AT TOTALITY OF CIRCUMSTANCES!!! FACTORS Did victim: Vomit? Urinate? Defecate? Could victim: Walk? Talk? Did victim have to be helped with physical tasks? Did defendant: Carry victim? Follow victim? Victim’s coordination Who undressed who? Victim’s appearance / clothing Dirty? Disheveled? Bloodshot eyes? Location of assault Was victim conscious? Sexual acts and position Degree of coordination involved
PREDATOR VS. JUST SOME DRUNK GUY Look at: His degree of intoxication (Capacity to do other things) Any planning, manipulation or attempts to deceive victim Amount and use of force / threats Accused’s attempts to control the situation and overcome victim’s will Example – provision of alcohol or drugs, isolation, lies
TOXICOLOGY AND CREDIBILITY CNS Depression of Ethanol CNS Depression of Ethanol Impairs judgment Depresses learned social and cultural inhibitions Impairs self-evaluation Euphoria Memory loss Shortened attention span Sedation
VICTIM’S CREDIBILITY Perception at the time of the incident Memory after the incident Corroboration Victim likeability
PERCEPTION AT THE TIME OF THE INCIDENT Degree of intoxication (your help needed here!) Were her motor skills obviously impaired? Did she appear to perceive what was happening around her? Who does she say gave her the drinks or drugs? Was it the accused? Did accused encourage her to keep drinking or use more drugs? MEMORY AFTER THE INCIDENT What does she remember about the incident? Did she black out or pass out? If she reports either, document in the medical records Where did she go that night?
MEMORY AFTER THE INCIDENT Can anything refresh victim’s memory? Physical or medical evidence Statements that she made that are recorded in the medical record might cue memory recall Statements from other witnesses Photographs, videotapes, 911 tape
CORROBORATION Victim may not report or may delay in reporting Evidence collection issues Credibility issues Must corroborate everything possible
CORROBORATION Witnesses To ingestion, incident, fresh complaint witnesses Friends of the victim, friends of the suspect Physical evidence Medical evidence Interview of the accused VICTIM LIKEABIILITY Victim becomes the focus of the trial instead of the accused Victim may blame self for placing self in a risky situation May not want to cooperate with prosecution Self blame may cause victim to be less sympathetic or less credible
IMPLICATIONS FOR MEDICAL PERSONNEL Supporting victims of AFSA Be nonjudgmental Many victims blame themselves WHAT DOES VICTIM CENTERED CARE REALLY MEAN? SAFEs It’s not your job to decide if the patient was really raped BUT the SAFE must be able to articulate why drugs and alcohol are effective tools You see alcohol and other drugs in the cases you are dealing with TOXICOLOGY SCREENS Should you do one in every case? Whenever medically indicated or Victim is unable to provide a history Expert testimony: Use height, weight and present blood alcohol to calculate estimate of prior alcohol consumption TOXICOLOGY SCREENS Issues that arise Importance of specific consent for toxicology Concern – illegal drugs, underage drinkers, etc. Must be able to have this discussion with patients Discussion should happen at the SART level Careful not to make promises you can’t keep, particularly related to the actions of others in the SART
Toxicology Screens “Date Rape” drugs might be detected Rohypnol and GHB are metabolized quickly Less than 12 hour half life Mostly metabolized upon waking – too late to detect Severe memory impairment No encoding Some drugs are volatiles and may require special preservation to be examined in lab Unconscious/intoxicated victims may need full screen RESPONSIBILITY TO YOUR PATIENT Obtain informed consent for the whole exam What about the patient who is too intoxicated to legally consent? How do you know when that is the case? Patients should understand limitations of SAFE exam. May not be able to give any information about what happened to them. Patients must understand that the exam may not give them the answers they seek. Overcoming challenges of AFSA at trial Could be called as a fact witness or medical expert
INJURIES Lack of injury can be an important finding Medical expert can explain lack of injuries Unconscious victims CANNOT resist! No defensive injuries No torn clothing Should look for injuries consistent with drunk or drugged victim Bumps to head Abrasions on back Bruises
INJURIES Note everything in medical chart/SAFE protocol Photograph whenever possible AVOID POLAROIDS!
THE REALITY Many victims present to medical personnel under the influence of some substance or drug. Medical experts can testify about alcohol and trauma, particularly those working in ED, critical care Contact Info Teresa Scalzo DoD SAPRO
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