Factors which increase a defendant’s criminal liability are called aggravating factors, while factors which lessen the severity of an offense are called mitigating factors.  Intoxication is an aggravating factor with regard to car accidents, and having a high BAC (Blood Alcohol Content) can make the penalties for a DUI/DWI more severe than they would have been under different circumstances.  But does intoxication by drugs or alcohol have any legal impact on New Jersey defendants who are charged with committing sex crimes?  Our Atlantic City sexual assault lawyers explain the relationship between intoxication and criminal liability.

Alcohol and Sexual Assault: Studies and Statistics

The connection between drugs/alcohol and sexual assault is well-known, and numerous studies have documented the incidence of drug- or alcohol-facilitated assault and abuse.  For example, according to an NIH study titled “Alcohol and Sexual Assault,” “Conservative estimates of sexual assault prevalence suggest that 25% of American women have experienced sexual assault, including rape.  Approximately one-half of those cases involve alcohol consumption by the perpetrator, victim, or both.”

Another analysis titled “The Campus Sexual Assault (CSA) Study: The Final Report,” which culled data from 2005 to 2007, found that “7.8% of women were sexually assaulted when they were incapacitated after voluntarily consuming drugs and/or alcohol (i.e., they were victims of alcohol and/or other drug- [AOD] enabled sexual assault).”

A January 2012 White House report titled “Rape and Sexual Assault: A Renewed Call to Action” noted that “58% of incapacitated rapes and 28% of forced rapes took place at a party,” implying a strong connection between intoxication and sex crimes.

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The White House analysis also commented that “perpetrators who drink prior to an assault are more likely to believe that alcohol increases their sex drive – and are also more likely to think that a woman’s drinking itself signals that she’s interested in sex.”

While alcohol may be prevalent in sexual assault charges, that doesn’t mean intoxication an an excuse for defendants.  On the contrary, the victim’s state of intoxication can actually make the charges (and potential penalties) even more severe.

Rape Prosecution Factors: Victim or Defendant Intoxication

New Jersey’s sexual assault laws are located at N.J.S.A. § 2C:14-2, which divides sexual assault and aggravated sexual assault into two separate offenses.  While both are graded as felonies (known in New Jersey as indictable crimes), aggravated sexual assault is the more serious offense because of the circumstances under which it is charged.  To give just a few examples, these circumstances might involve causing injury to the victim, sexually assaulting a victim who is 12 years old or younger – or assaulting an individual who is incapable of giving consent.

In accordance with N.J.S.A. § 2C:14-2(7), a defendant can be charged with aggravated sexual assault when “the victim is one whom the actor knew or should have known was physically helpless or incapacitated, intellectually or mentally incapacitated, or had a mental disease or defect which rendered the victim temporarily or permanently incapable of understanding the nature of his conduct, including, but not limited to, being incapable of providing consent.”  This could potentially include incapacitation by drugs and/or alcohol.

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All the same, this is a highly complex area of law and there are many factors which must be weighed during trial.  The National District Attorneys Association (NDAA) notes the following in a 2007 Special Topics Series titled “Prosecuting Alcohol-Facilitated Sexual Assault”:

“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…  Sexual assault cases involving alcohol are not as clear cut…  Instead, the equation involves an analysis of the totality of the circumstances and numerous factors.”

These factors include, but are not limited to:

  • The extent to which the victim was intoxicated.  This includes:
    • Whether the victim could communicate.
    • Whether the victim was conscious.
    • Whether the victim was in a responsive or unresponsive state.
    • Whether the victim “blacked out” or experienced memory loss.
  • Whether physical force was used against the victim.
  • Whether the victim (or defendant) had any incentive to lie about the events that transpired.
  • The extent to which the defendant was intoxicated.  As the NDAA notes, “The more sober he was, the easier it is to show he was a predator, especially if the victim was extremely intoxicated.”
  • Whether the defendant has a history of prior offenses.

If you’ve been charged with sexual assault in New Jersey, you face decades in prison, heavy fines, mandatory registration as a sex offender, and the creation of a criminal record.  You need an experienced Atlantic City criminal defense attorney protecting your rights.  To set up a free and confidential legal consultation, call the Law Offices of John J. Zarych at (609) 616-4956 today.  We also handle charges involving child molestation and child pornography.