Understanding Alcoholic Blackouts and Sexual Assault

It’s great to be back doing videos today. I’ve doing videos all day and we’re getting towards the end of the day and this is one of my last videos. So I have kind of an interesting topic. Well maybe that’s not the word I should say, a perplexing topic. And it has to do with alcoholic blackouts in the context of sexual assault allegations. So, first of all, let’s define alcoholic blackouts. I’ve dealt with this over the years in many different sexual assault trials because it’s a very common theme alcoholic blackout. So how can I define an alcoholic blackout? Well look at it this way. Let’s pretend you’re at a bar and you’re drinking heavily. You’ve been drinking all day. And it comes to about 11 o’clock at night and that’s the last thing you remember. You wake up in the morning in your hotel room or your house and you say, My God, how did I get home? I can’t remember what happened from 11 on. Now, that’s called alcoholic blackout brought on by alcohol. And let’s assume that you talk to your friends and they say yeah, yeah, Mike. I was speaking to you from 11 til 1 and you seemed fine. I mean, you were slurring your words slightly, and you seemed a little bit drunk, but you weren’t that bad. Really? Yeah, you were still talking sense and whatnot and you seemed fine that way. That’s a real possibility that happens all the time. I mean, the other scenarios where the person is completely out of it incapacitated, right, but I’m talking about a person who’s actually capable of consenting in that in that alcoholic blackout state not remembering it, and then waking up the next morning and saying I don’t remember damn thing. Okay. So this is a fairly common scenario in sexual assault allegations where you have a woman say, who was drinking heavily and can’t remember after certain point, but the next morning finds that she’s been sexually assaulted in some fashion. Let’s say she sees semen somewhere. Oh, my God goes and gets tested and they find the DNA and they locate the man. Obviously, they had sex. So the issue is whether it was consensual or non-consensual. Well, in many cases, obviously, it wasn’t consensual, but in some cases it was. I mean, you can in this situation not remember that you had consent. Consent is so that’s called an alcoholic blackout. So what happens then is the woman will come to court and she’s allowed to testify in this fashion. She’s allowed to say, look, I never would have had sex with that man. I didn’t know him very well and met him at the bar. There’s no way you’re allowed to say that. And that goes a long way with judges. There’s no question and legitimately so. Now let’s pretend or let’s assume the man is able to say and he comes across as credible, that they did have consensual sex and he withstands cross examination so an accused in that situation would probably have a pretty good chance of winning. I mean, I’ve won that type of case before there’s no question. Now the woman maintained that she never would have had sex with the person. She had an alcoholic blackout and let’s face it, I mean, as a premise, alcohol does lower inhibition. So someone’s saying I never would have sex well, maybe that statement should’ve been read with a grain of salt. Let me give you another situation. I’ve defended cases where both people had alcoholic blackouts. Now, I can tell you that under Canadian law becomes a very difficult case to win because the accused cannot truthfully say whether he had sex or not. He knows he did because his DNA proved it. The accused can say as well. I never would have sex that that woman but alcohol lowers inhibitions, doesn’t it and they could have been judges tend to convict in that situation.

In the first situation it’s potentially a case you could win. In the second situation, this could become very difficult. And let’s face it in both situations, it’s very possible, believe me this happens all the time where women get sexually assaulted in that type of situation, but there’s also the possibility and we have to concede. Let’s agree to agree that alcohol lowers inhibition. Sometimes people have alcoholic blackouts and do things that they normally wouldn’t do and can’t remember. Now, I was speaking to a friend he was surprised to know that in a situation where both can’t remember that there be a conviction. I said that’s the state of Canadian law right now. I’m not being critical of it. Neither can remember and judges will tend to convict if a woman can truthfully say I typically would not there’s no way I would have had sex with that, man. I wasn’t interested in him So there you have it. Those are two common scenarios. I’ve defended both types of cases sometimes successfully, sometimes not. And the case law in Canada favors the first situation if your client can come across well, he’s going to tend to win in the second situation, no, and maybe you know, the bottom line is alcohol is a dangerous thing. Mixing sex with alcohol is not to be advised and it creates a lot of problems. And I’m going to be doing a series of videos about alcohol, consent, complications from alcoholic with consent is going to be interesting in my next video session in a couple months, and stay tuned for that. You’ll be interested in that. These are very complicated legal issues, and I try to give examples to bring them down to the nuts and bolts of it. Rather than sit here with legal jargon and cite a bunch of cases that take me 20 hours to understand before I go to trial, let alone pontificating to you guys about the complications of consent and alcohol and all these sort of things. So anyway, thanks for joining today. It’s been it’s been a very good long day. I’m getting tired, but I always enjoyed doing these legal videos for you to educate you guys and the public and it’s been a lot of fun. Thank you for watching our video. We are absolutely committed to bring you the best possible criminal and DUI educational videos. If you found this video helpful, please like it and subscribe to our YouTube channel. If you’ve been charged with a criminal offense and Ontario and require our services, please click on the link in the description below.