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“All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.”

 Universal Declaration of Human Rights

Article 1

“All sexual assault is an act of aggression, regardless of the gender or age of the victim or the assailant. Neither sexual desire nor sexual deprivation is the primary motivating force behind sexual assault. It is not about sexual gratification, but rather a sexual aggressor using somebody else as a means of expressing their own power and control”   Nicholas Groth, a clinical psychologist     The current law is wholly insufficient to address the problems of drug assisted rape and the problems confronted by the victims of such a rape. Drug-facilitated sexual assault is not a new phenomenon. Experienced law enforcement officers and advocates know that alcohol is the most common drug used to facilitate sexual assault. Alcohol has been used as a method to facilitate sexual assault for years and remains the most widely used drug today.   Rape drugs make it relatively easy for rapists to gain control of their victims. The surreptitious drugging of a victim is, in and of itself, a cruel and criminal violation of the person.  The rapist does not have to overcome any form of resistance.   No need for physical force or threats, the drugs they administer immobilize and silence the victim. Some of these drugs produce Anterograde amnesia is a condition in which events that occurred during the time the drug was in effect are forgotten.[i]  Victims may not seek help until days after the assault, partly because the drug impairs their memory and partly because of their inability to recognize signs of sexual assault.  Anterograde amnesia is a condition in which events that occurred during the time the drug was in effect are forgotten.[ii]   Drug-facilitated rape presents its victims and law enforcement personnel with an additional set of challenges above and beyond those associated with other sexual assaults.  Often referred to as “date-rape drugs,” Rohypnol, GHB, and ketamine[iii] are used by rapists to render women unconscious, making them unable to resist unwanted sexual advances. The American Prosecutors Research Institute defines “drug-facilitated rape” as: [s]exual assault facilitated by the offender’s use of an ‘anesthesia-type’ drug which when administered to the victim (stealthily or not) render[s] the victim ‘physically incapacitated or helpless, and thus incapable of giving or not giving consent. GHB may cause enhanced sexual feelings by the victim. Victim may participate in reciprocal acts, as a result of the drug, rather than free will.  These victims may be either be conscious or unconscious during their sexual assault and have anterograde amnesia upon gaining normal consciousness, similar to the effects of a surgery patient coming out of anesthesia.[iv]   There is a widely held misconception about the effects of the drugs commonly associated with drug assisted rape. Despite the prototypical construction, the reality is that people who have ingested drugs such as Rohypnol and GHB rarely lose consciousness. Rather, the amnesiac effects of the drugs prevent victims from recollecting events thus creating a ‘memory void’ that the brain rationalizes as a period of unconsciousness. However, the victim will retain consciousness whilst appearing to the observer to be inebriated but able to act under her own volition (Dowd, Strong, Janicak and Negrusz, 2002)[v]. By eliminating the possibility of consent, the prototypical construction focuses attention on the use of drugs to obtain intercourse (from a victim who is presumed to be unconscious) rather than on the use of drugs to obtain consent (from a victim whose state of mind is affected by the drugs). It is this latter situation that is a more accurate representation of the majority of cases of drug assisted rape. Drugs such as Rohypnol and GHB lower anxiety, alertness and inhibition whilst inducing euphoria, passivity and a sense of relaxation thus increasing the likelihood that the victim will engage in intercourse, even if such behavior would usually be uncharacteristic, leading them to be described as ‘a particularly formidable weapon’ in sexual assault cases (Weir, 2001, p. 80).[vi]    In addition to this impact on the victim’s thinking and behavior, these drugs induce anterograde amnesia thus leaving the victim with only a hazy recollection of events. When victims of drug-facilitated rapes cannot give a complete narrative, they often encounter suspicion, disbelief, and/or frustration.[vii] Many aspects of a rape investigation are facilitated by a victim’s ability to describe what happened. The victim’s narrative helps guide the medical/evidentiary examination and the police investigation.  Their inability to supply information that could assist the investigation and/or prosecution compounds their sense of helplessness.[viii]   The amnesiac impact of these drugs has been described as ‘their most insidious effects’ and clearly has a negative impact on the ability to detect and prosecute perpetrators of drug assisted rape (Labianca, 1998). [ix] It would appear that Rohypnol and the like facilitate rape not because they render the victim unconscious but because they lead to a disassociation between mind and body that renders the victim receptive to sexual activity that she may well have found unwelcome in other circumstances, whilst eroding her ability to recollect events once the drugs have worn off.  To onlookers the victim may appear drunk or impaired and the rapist taking the victim to another place may appear to onlookers as assisting an impaired person.  While the victim is still under the effects of the drug which may last 72 hours, the rapist has plenty of time to create a plausible cover story.[x]  Some drugs stay for a couple of days, but GHB, the most popular for obvious reasons, very quickly dissipates from the system. There is no “screening test” for GHB; it requires a confirmation test that hospitals cannot do and crime labs only do upon specific request.   [i] Drug-Facilitated Rape: Looking for the Missing Pieces, Nora Fitzgerald and K. Jack Riley, PhD, Journal, National Institute of Justice, Office of Justice Programs, U.S. Department of Justice, Washington, DC: April 2000, http://www.ncjrs.org/pdffiles1/jr000243c.pdf   [ii] Drug-Facilitated Rape: Looking for the Missing Pieces, Nora Fitzgerald and K. Jack Riley, PhD, Journal, National Institute of Justice, Office of Justice Programs, U.S. Department of Justice, Washington, DC: April 2000, http://www.ncjrs.org/pdffiles1/jr000243c.pdf   [iii] American Prosecutors Research Institute, The Prosecution Of Rohypnol And Ghb Related Sexual Assaults, Ch. 1, pp. 13 – 17 (1999) [hereinafter APRI] (describing twenty-one other drugs used to facilitate sexual assault). I have chosen this focus because these three drugs have garnered the most attention from the government, media, and medical field. Although I later argue that this narrow focus should be avoided, I found it necessary to mirror these group’s focus in order to describe most accurately the overall response to the date rape drug crisis. It should be clear from the outset of this paper, however, that my focus on Rohypnol, GHB, and ketamine in no way suggests that these three drugs are the most prevalent or dangerous drugs related to rape.   [iv] APRI, supra note 12, at Ch. 1, p. 5.   [v] Dowd, S.M., Strong, M.J., Janicak, P.G. and Negrusz, A., 2002: ‘The Behavioural and Cognitive Effects of Two Benzodiazepines Associated with Drug Facilitated Sexual Assault’ Journal of Forensic Science vol. 47, pp. 1101-1107   [vi] Weir, E., 2001: ‘Drug Facilitated Date Rape’ Canadian Medical Association Journal vol. 165 (1), p. 80 [vii] Successfully Investigating Acquaintance Sexual Assault:  A National Training Manual for Law Enforcement, The National Center for Women and Policing, http://www.womenandpolicing.org/ Publication Date: May 2001   [viii] Successfully Investigating Acquaintance Sexual Assault :  A National Training Manual for Law Enforcement, The National Center for Women and Policing http://www.womenandpolicing.org/ Publication Date: May 2001   [ix] Labianca, D.A., 1998: ‘Rohypnol: a Profile of the Date Rape Drug’ Journal of Chemical Education vol. 75, pp. 719-722   [x] Archambault, Joanne “Dynamics of Sexual Assault” Training Director, Sexual Assault Training and Investigations, SATI, Inc, SATI, Inc., Addy, WA 99101-0033, joanne@mysati.com

"Making GHB a Schedule I controlled substance appropriately reflects the Congress' judgment that possession and distribution of GHB should be prohibited and those violators should be subject to stringent criminal sanctions." 
President Clinton 2/18/2000

It is generally accepted by those working with rape victims and also those working to enforce the Controlled Substances Act that we need to improve how we handle drug facilitated sexual assaults. SB 1561 (The Samantha Reid Date-Rape Drug Control Act of 1999) has merged into H.R. 2130 to be called The Hillory J. Farias and Samantha Reid Date-Rape Drug Prohibition Act of 2000. The Hillory J. Farias and Samantha Reid Date-Rape Drug Prohibition Act of 2000‘‘ or Public Law 106-172 of the 106th Congress was enacted by the Senate and House of Representatives -. (21 USC 812 note, 21 USC 801 note) to amend the Controlled Substances Act to direct the emergency scheduling of gamma hydroxybutyric acid, to provide for a national awareness campaign, and for other purposes.

In this act Section 2 findings stated that:

―Gamma hydroxybutyric acid (also called G, Liquid X, Liquid Ecstasy,
Grievous Bodily Harm, Georgia Home Boy, Scoop) has become a significant
and growing problem in law enforcement. At least 20 States have scheduled
such drug in their drug laws and law enforcement officials have been
experiencing an increased presence of the drug in driving under the influence,
sexual assault, and overdose cases especially at night clubs and parties.”

In section 7 (a) The Secretary of Health and Human Services was to periodically submit to Congress an Annual Report Regarding Date-Rape Drugs and also institute a National Awareness Campaign. (21 USC 801 note).It is stated that The Secretary, in consultation with the Attorney General, shall develop a plan for carrying out a national campaign to educate individuals described in subparagraph (B) on the following:

(i) The dangers of date-rape drugs.
(ii) The applicability of the Controlled Substances
Act to such drugs, including penalties under such Act.
(iii) Recognizing the symptoms that indicate an individual may be a victim of such drugs, including symptoms with respect to sexual assault.
(iv) Appropriately responding when an individual has such symptoms.

(B) Intended Population.— The individuals referred to in subparagraph (A) are young adults, youths, law enforcement personnel, educators, school nurses, counselors of rape victims, and emergency room personnel in hospitals.

PUBL 172

In addition in section 8 there was established a special unit in The Drug Enforcement Administration for assessment of abuse and trafficking of GHB and other controlled substances and drugs which shall assess the abuse of and trafficking in gamma hydroxybutyric acid, flunitrazepam, ketamine, other controlled substances, and other so-called ‗‗designer drugs‘‘ whose use has been associated with sexual assault. The DEA‘s particular duties included: (1) examine the threat posed by the substances and drugs referred to in that subsection on a national basis and regional basis; and (2) make recommendations to the Attorney General regarding allocations and reallocations of resources in order to address the threat. In addition the DEA is permitted to reallocate the existing resources as appropriate and additional resources were also designated by Congress. In addition the section SEC. 5. Controlled Substances Analogues subparagraph (B) includes the designation of gamma butyrolactone or ‗‗or controlled substance analogue‘‘ as a listed chemical and adds under DEA control under (b) the distribution with the intent to commit a crime of violence.

Making GHB Schedule 1 makes it a crime to possess, manufacture, or sell GHB or its precursors, with up to 20 years jail time for it. It will be in the same drug class as marijuana or heroin.75

H.R. 2130 Hillory J. Farias and Samantha Reid Date-Rape Drug Prohibition Act of 1999 cleared congress and would have allowed the DEA to pursue crimes related to GHB more vigorously. The act‘s designations for GHB and GB would increase the penalties for unauthorized manufacturing or distribution of these substances and would tighten federal control over their use. As a result, the federal government would be able to pursue cases that it otherwise would not be able to prosecute. Because those prosecuted and convicted of offenses under H.R. 2130 could be subject to criminal fines, the federal government might collect additional fines if the legislation is enacted. Such fines are recorded in the budget as governmental receipts (i.e., revenues) which are deposited in the Crime Victims Fund and spent in subsequent years. Because any increase in direct spending from the Crime Victims Fund would equal the fines collected (with a lag of one year or more), the additional direct spending would be less than $500,000 annually.

Many rape victims still despair of obtaining justice, and for good reason. It is true that police, prosecutors, and judges have a terrible record of dealing with the crime of rape. But drug facilitated rapists are most commonly serial rapists. They will commit this crime again. There are estimates that as many as 20% of all rapes are facilitated with drugs. 

Real rape‖ in the context of drink spiking, is often considered to be demonstrated when a woman claims to have been sexually assaulted, and her allegation is supported by a positive toxicology test. Forensic evidence of a CNS depressant as the weapon used to overcome resistance ultimately signals a lack of consent.41 But a negative toxicology report often just means that we didn‘t get the evidence taken soon enough, for a variety of reasons. This is still rape!

The most common abuse of criminal justice officials against rape victims is that these officials frequently try to dump rape cases. It is well documented in many sources that widespread dumping of rape cases goes on today in law enforcement agencies around the country. Often law enforcement doesn‘t even allow the sexual assault victims is the right to be accompanied at all times throughout the criminal justice process by a victim advocate and by a support person of the victim‘s choice. This is the best way to protect the rape victim from abuse in the criminal justice system. The problem is that because of the trauma of the rape, most rape victims feel very unsure of themselves. They often don't trust their own judgment. Rape victims often find it difficult to admit they're being mistreated by the people who are supposed to be helping them. And they find it even more difficult to protest the abuse. Officials may respond to the rape victim with disrespect, lack of concern for her safety, an accusatory tone, disbelief, lack of interest, annoyance, intimidation, or even attempts to isolate her from her support person. One of the most common and easiest ways that officials have of dumping a rape case is to simply ignore her. The reason this works so well is that rape victims find it very difficult to assert themselves and even more difficult to push the police. Long delays in returning phone calls, unclear explanations about what happens next, sloppy answers to the rape victims questions, or disinterest in answering her questions is common. The official may be unwilling to ask about the victims needs and accommodate them. Failure to be openly concerned about the rape victim‘s need for privacy, support, safety, housing, etc., is much more than just a sign the officer is impolite. In order to successfully pursue a rape case, officials must pay close attention to the needs of the victim. Incomplete investigation is another very common way that officials dump rape cases. If officials don't gather all the evidence, then it's easy for them to tell the rape victim, "We're very sorry, we'd like to help, but there's not enough evidence to go forward with your case." If an official tells her there's not enough evidence, or that her case is a 'he said, she said' case, or that the district attorney won't file, or that the defense will attack the rape victim for this or that, it may very well be that the official is just trying to get rid of her. Officials attempt to divert the rape victim and to remove her case out of the criminal justice process. Rape is a violent crime, and it's the job of police and prosecutors to investigate the case thoroughly, to protect the rape victim‘s safety, and to do everything possible to obtain justice for her and the community.

Du Mont, J., Macdonald, S., et al. Drug-facilitated sexual assault in Ontario, Canada: Toxicological and DNA findings. Journal of Forensic and Legal Medicine (2010). 17(6): 333-338.

 

Du Mont, J., Macdonald, S., et al. Factors associated with suspected drug-facilitated sexual assault. CMAJ (2009). 180(5): 513-519.

 

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