A National Institute of Justice (NIJ) article describes a sample of 602 reported rapes in which about 36% involved intimates or family and about 43% involved friends or acquaintances.
When the people involved already knew each other, the dispute often shifts from identity to consent, and that shift drives most of what happens in the defense of these charges.
Here are some of the defense strategies that may be effective against date rape accusations.
Where These Cases Get Contested
NIJ says that when the people involved know each other, consent becomes the central question. In fact, a suspect’s DNA may tell investigators very little, especially when the suspect admits sexual contact.
DNA can also be missing or unusable, since samples may be old, degraded, or too small for the FBI’s national database. Only about 38% of more than 7,000 sexual assault kits tested in NIJ-related projects produced profiles eligible for upload to that database. NIJ also reports that in its Solving Cold Cases With DNA program, only about 48% of cases with tested biological evidence produced a DNA profile of any kind.
Many criminal defense firms handle sex crime cases alongside other matters. According to the website of NYC date rape lawyer Jeff Greco, date rape is not a formal legal term. The charges and elements are the same as for rape by a stranger, so a prosecutor must still show intercourse with a person who could not or did not consent.
Toxicology and the Question of Capacity
Alcohol and drugs often enter these cases. NIJ says in its overview of drug-facilitated sexual assaults that alcohol and drugs can diminish a person’s capacity and make them vulnerable to their surroundings. The overview notes that a so-called date-rape drug such as alprazolam or GHB may be taken without the person’s knowledge, while a mainstream party drug such as alcohol, ecstasy, or marijuana may be taken voluntarily.
The role of timing should not be underestimated since many drugs quickly pass out of the system. Depending on the drug, effects can be felt as quickly as 20 minutes after ingestion, and amnesia can last up to eight hours. Since many synthetic drugs break down quickly in urine and blood, they may not be detected, even when samples are properly stored. These time constraints complicate matters for both parties, as any laboratory tests of these drugs depend on when and how the sample was collected.
Other defense practices describe their approach in similar terms. According to the law firm website https://www.sanchezburke.com/, sex crime defense involves reviewing all of the evidence, using private investigators to find and interview witnesses who may support the defense or challenge the credibility of the government’s witnesses, and working with forensic and DNA specialists to analyze the prosecution’s evidence.
Physical and Digital Evidence
NIJ points to several other kinds of proof. Injuries documented in a medical exam can make a consent claim harder to sustain. Text messages sent afterward can contradict a suspect’s account, and the same kind of record can matter to either side.
Body fluid identification, trace evidence, and fingerprints can link people to places and objects. NIJ notes that, in addition to bodily fluids, fingerprints and hairs are among the most common types of physical evidence collected in sexual assault casework. In one case example NIJ describes, a knife tested positive for prints from both the victim and the suspect, even though the suspect denied handling it.
NIJ also cites reports that 72% of jurors expect to see DNA evidence in a sexual assault trial and that juries are 33 times more likely to convict when DNA evidence is presented. This poses practical difficulties for cases that rely on evidence other than DNA.
In these cases, arguments usually revolve around contradictory claims. Most of the arguments are about how physical and digital evidence supports a certain version of the facts. Advances in detection techniques may also help show which claims are believable. NIJ is supporting research on new ways of extending the toxicology testing window, which could provide evidence of incapacitation when a report is delayed.
What This Means for the Defense
These findings suggest why many acquaintance sexual assault cases turn into defenses of the quality of the evidence and less so about the identity of the offender. When DNA evidence is not present or cannot be used, other evidence must be introduced. Most often, the evidence will include testimony, toxicology reports, and digital/physical records. Defense lawyers can ask to know the exact time each sample was taken, what each lab detected, and if each individual’s account was reflected in the records. These details, especially since the entire case relies on consent, can make the difference for prosecutors, judges, and juries as to which side to believe.
