Unfortunately, some unscrupulous people think it is acceptable to intentionally get someone high or drunk before engaging in sexual activity. Sexual assault that is facilitated by drugs or alcohol can be defined as a crime in which the alleged victims are put at risk for non-consensual sexual activity while unconscious or incapacitated. This can be the result of alcohol and/or drugs, therefore making them unable to legally provide consent. They may even be unable to resist verbally or physically.Recollections of the event can vary from individual to individual, and there have been situations in which people were wrongfully convicted. If you are facing charges of sexual assault, a sexual assault defence lawyer can help with your case.

In recent years, public awareness and reports of sexual assault facilitated by alcohol or drugs have increased. However, very few studies have focused specifically on sexual assaults that involve drugs and alcohol or the type of drugs involved.

Du Mont and colleagues investigated possible sexual assaults that were facilitated by drugs. The study was among 882 individuals, 97% of whom were females who reported a sexual assault. The researchers presented their findings before facilities in Ontario that were considered sexual assault centers backed by hospitals.

The researchers were looking for victims who reported their assault under the suspicion that drugs were involved. The victims’ report must also have included one or more of the following symptoms associated with the claim:

  • Amnesia
  • Unconsciousness
  • Confusion
  • Drowsiness
  • Paralysis

If a report was filed indicating a suspicion that the ingestion of drugs was involved and if one of the symptoms above was indicated, the determination was made by researchers that the individual interviewed was the victim of a sexual assault that was facilitated by drugs.

Of the 882 people interviewed in the study, almost 21% were victims in this category.

The following is a list of the most frequently occurring substances that were found in the toxicology screenings:

  • Alcohol exclusively, meaning absolutely no other drug was present- 12.9%
  • Alcohol predominantly- 30.9%
  • Marijuana- 33.7%
  • Cocaine- 21.4%
  • Amphetamines- 7.3%
  • MDMA (also known as ecstasy)- 7.3%

Anti-anxiety medication, antidepressants, and ketamine rounded out the list.

Rohypnol, or “roofies,” considered by many to be a drug commonly used in sexual assault, was not found in any of the people tested.

Succinctly, the most comprehensive study of the subject indicates about one fifth of sexual assaults are facilitated by drugs and that a variety of drugs are utilized by assailants to debilitate their victims.

One of the problems with this study is that the Canadian courts have ruled that a person who is drunk or on drugs may still have the capacity to consent.  A person’s ability to consent depends on their level of impairment by alcohol or drugs at the time of the sexual activity.   For example, a falling down drunk or person who is completely “out of it” as a result of taking a drug obviously does not have the capacity to provide a valid consent to sexual activity.  However, each individual factual situation must be carefully examined by a judge or jury to determine whether or not they had the capacity to consent and whether consent was in fact given.

The difficulty a trier of fact has is determining whether the line was crossed that the alleged victim was so impaired by alcohol or drugs that they did not have the ability to consent.  For example, a person who is mildly to moderately drunk or impaired by a drug may be able to consent to sexual activity and then not remember that they provided a valid consent. The phenomenon of not being able to remember what happened for example, the night before, despite the fact that you were conscious and functioning during same, is often referred to as an “alcoholic blackout.”

It is not uncommon over the course of human affairs for people to provide a valid consent to sexual activity when they are either moderately drunk or high on drugs or a combination of both.    Clearly, if a person is asleep, unconscious or paralyzed, they are not capable of consenting to sexual activity.  The courts continue to grapple with the issue of where the line should be drawn in every factual situation where the alleged victim claims they were too drunk or high on drugs to consent.

Sexual Assault Lawyers in Toronto and Throughout Ontario

A common misconception is that someone can only be charged with sexual assault or rape if the alleged victim expressly declined or physically resisted engaging in sexual activity.However,  there are many circumstances in which an interaction of a sexual nature will be considered non-consensual even if the alleged victim did not resist and/or did not say “no.”

The offence of sexual assault is a very serious crime.  A charge of this type carries harsh penalties, including lengthy jail terms.  If you are facing charges of sexual assault or a sexually related crime, do not put your future in jeopardy. The experienced and knowledgeable criminal defence lawyers at Kruse Law will work diligently to make sure your case has the best possible defence.

Schedule a free consultation or call toll free 1-800-699-0806  to speak with one of our professionals today. You can also send an email to defence@kruselaw.ca.

By Published On: July 11, 2023Last Updated: November 6, 2023Categories: Blog, Sexual Assault

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