Few cases are more challenging for investigators and prosecutors than non-stranger sexual assaults that involve alcohol use, especially voluntary drinking on the part of the victim prior to the assault. Among other challenges, a recent defense that has been raised successfully nationwide is the possibility of the victim having “blacked out,” and consenting to sexual activity, but not remembering doing so.
The so-called “blackout” defense is particularly problematic because it can be raised in circumstances where the victim’s memory and credibility are already compromised. Defense attorneys also find the defense attractive because it doesn’t involve challenging the victim’s credibility as a truth-teller, but rather as a reporter; the argument goes that the victim is not a liar necessarily, but simply mistaken because of the inability to remember consenting to sex.
While there is no “silver bullet” answer to this defense, there are realities about the condition that should be thoroughly understood by responders at every level. For instance, while blacking out is a recognized neurological phenomenon, it is not as common as may be perceived, and also usually seen in the context of obvious impairment. It’s also important not to confuse blacking out with passing out, which is a loss of consciousness. Offenders may seek to claim “blackout” when a victim regains consciousness and realizes he or she has been sexually assaulted when, in fact, the assault occurred while the victim was in an unconscious or nearly unconscious state.
This presentation will go over the basic physical facts about what “blacking out” is, and also contrast them with passing out. It will then cover how investigators and prosecutors can distinguish the two, and how evidence can be gathered from victims, witnesses and other sources to demonstrate whether one or the other was truly at work. Strategies will be discussed for addressing the defense both during the investigation and at trial so that the chances for justice can be maximized.
As a result of this session, participants will be better able to:
- Understand the effects of alcohol on memory and behavior, particularly the physical, neurological phenomenon of “blackout” and distinguish it from a loss of consciousness.
- Combat myths that often surround non-stranger sexual assault cases involving the voluntary use of alcohol by victims and suspects.
- Develop strategies for evidence gathering and recall from the victim, witnesses, suspect and other sources to combat an erroneous blackout defense when confronted with it.
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This project is supported by Grant No. 2015-TA-AX-K015 awarded by the Office on Violence Against Women, U.S. Department of Justice. The opinions, findings, conclusions, and recommendations expressed in this publication/program are those of the authors and do not necessarily reflect the views of the Department of Justice, Office on Violence Against Women.
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