The Kickham Comment - Boston Criminal Attorney Blog
Date Rape, also referred to as “Acquaintance Rape” can be a serious problem, and is real.
Notwithstanding that the media have been reporting date rape as a new phenomenon, primarily due to the covert use of an anesthetic drug, the practical reality is that drugs (most frequently alcohol,) have been involved in social situations culminating in Massachusetts sexual assaults since Prohibition ended, and even previous to that. The use or ingestion of chemical substances (primarily alcohol) during social or dating encounters is almost universal, and as a drug alcohol is notorious for lowering inhibitions, especially sexual inhibitions. The most recent difference – and a major one – surrounding date rape, involves the the covert, or secretive, introduction of a sedating drug into someone else’s (the victim’s) drink. Rohypnol and Gamma hydroxybutyrate — GHB — are two of the most common substances used in drug-facilitated sexual assaults. Rohypnol is known on the street as “roofies.”
The Massachusetts Legislature has proscribed this activity on a statutory level, in M.G.L. Chapter 272: Section 3: “Whoever applies, administers to or causes to be taken by a person any drug, matter or thing with intent to stupefy or overpower such person so as to thereby enable any person to have sexual intercourse or unnatural sexual intercourse with such person shall be punished by imprisonment in the state prison for life or for any term of years not less than ten years.” In a legally “pure” date rape scenario, after unwittingly ingesting the drug, the victim is rendered unconscious or so sedated that he/she cannot either formulate or communicate his/her consent or lack of it.
It is that absence of consent which can create the legal basis for a charge of rape. If one cannot mentally formulate the requisite consent to engage in some type of sex, then any sexual acts that follow are by legal definition non-consensual. The best way to think of this is to consider someone who is developmentally disabled (intellectually or emotionally.) Such a person lacks what is known as the “legal capacity” to consent to sexual conduct. (A similar, though not quite entirely analogous legal concept, is present is cases of statutory rape, where the law “vitiates” consent on the part of the underage party, because the state deems anyone under a certain age to lack the capacity to consent to sex at that age.) However, in cases of date rape, it is not just the absence of consent that forms the basis of the charge. It is the concomitant, covert introduction by the alleged perpetrator of a sedative drug or substance that the victim was unaware of – thus indicating the perpetrator’s intent to deprive the victim of consent.
Thus, when a “true” version of date rape occurs, it is justifiably a serious crime, aside from being morally objectionable. And when this truly occurs, criminal prosecutions are appropriate –just as a legal defense is appropriate. The problem with these cases, arises not out of the “clear-cut” situations, but out of the more nebulous areas involving sexual conduct between two people. And by the way, this problem is not an entirely heterosexual problem – it occurs quite commonly between gay men, and gay women. This area of law is not limited to just the “he said-she said.”
The more difficult problems arise when an allegation of “date rape” is made against someone, without the covert use or introduction of any sedating drugs such as GHB or “roofies,” and without the presence of violence or threats of violence. As a Massachusetts rape defense lawyer, I can assure you that these kinds of accusations are becoming more and more common – chiefly due to legally unfounded and exaggerated definitions of “date rape” that have been advanced by feminist groups and several politically-correct and legally-nervous colleges and universities. (Colleges and universities are notoriously fearful of being sued for civil liability – specifically negligence and premises liability – following an allegation of on-campus rape.) These interest groups and academic organizations, in my view, have taken the existence of a clearly objectionable and repugnant idea (covertly drugging or sedating someone, to allow a perpetrator to engage in non-consensual sex,) and have used that repugnant practice as a justification to try and promote “new” and expanded definitions of rape, magnifying traditional legal definitions to encompass and include actions and circumstances that would have never previously met the legal definition of rape. Many, though not all, of these “new and expanded” definitions of rape have been advocated by feminist advocacy groups, many (though not all) of whom have a decidedly anti-male bias. (These same radical feminist groups won’t like that honest characterization, but then again they attack anyone who disagrees with their views.)
I’ll discuss more of these extremely unwise approaches to redefine rape, in my next post.