Rape law expands to include alcohol

Madison.com
Jun. 25, 2006

The nation's top party school could get a sobering jolt from a change in state law that puts alcohol on a par with date-rape drugs as an aggravating factor in certain sexual assaults.

The change, long sought by rape- victim advocates in Wisconsin, means that victims who are very drunk during a sexual encounter can be judged incapable of giving consent, triggering a possible second-degree sexual assault charge.

Prior to the change, which took effect in June, a victim who had been drinking typically had to be unconscious to be deemed incapable of consenting to sex.

The law applies to alcohol-related sexual assaults committed by anyone anywhere in the state. But it may have particular resonance on hard-drinking college campuses such as UW- Madison, which was named the country's No. 1 party school by the Princeton Review last year.

"It's a great change," said Carmen Hotvedt, a violence prevention specialist at UW-Madison's University Health Services. "In our educational efforts with students, we define consent as freely given. The (new) law really enforces the educational messages we've been sending for a long time."

Wisconsin had been the only state to exclude alcohol as a potential legal intoxicant in rape cases before the law change, sponsored by Sen. Cathy Stepp, R-Sturtevant.

And while prosecutors say it is likely to be used only rarely - in cases in which victims don't pass out but are so impaired by alcohol they are "unable to appraise their own conduct," as one advocate put it - the change was heralded by experts who work with assault survivors.

"Alcohol is the No. 1 date-rape drug, and we've felt strongly that our statutes should reflect that reality," said Jill Groblewski, spokeswoman for the Wisconsin Coalition Against Sexual Assault.

The coalition started lobbying for the change in the mid-1990s, when language on intoxicants was added to the rape statutes in response to a surge in assaults aided by drugs.

"The change in legislation allows prosecutors to hold offenders accountable who use alcohol to facilitate a sexual assault," Groblewski said. "It gives prosecutors additional charging options."

Just as dangerous

Under state law, having sexual contact with a person incapable of consent because they are under the influence of an intoxicant is defined as second- degree sexual assault. The offense is a Class C felony punishable by a fine up to $100,000 and a prison sentence of up to 25 years.

Dane County District Attorney Brian Blanchard said the change was "long overdue" and is a good thing primarily for the message about alcohol that it sends - namely, that it can be just as dangerous as other drugs.

Blanchard also stressed that the somewhat lower bar on consent standards for victims does not extend to perpetrators, who can be charged for crimes whether they have been drinking or not.

"Alcohol is not an excuse," he said. "It's our job to help jurors understand that people who want to commit sexual assault many times are going to take unfair advantage to get what they want."

The change comes too late for a UW-Madison junior who recently asked Blanchard to press charges against two male students she said raped her after a drunken party when she was a freshman. Laura Dunn said Blanchard told her earlier this month that the case might have been eligible for prosecution if the law had been in effect at the time of the incident in April 2004.

Without it, Dunn's ability to consent could have become an issue, she said Blanchard told her, in part because she cannot remember all of the details of the alleged attack and no one else witnessed it. She said she told the men to stop, but acknowledged she had been drinking heavily that night and repeatedly lost and regained consciousness during the incident.

"I can't remember 90 percent of it," Dunn said. "I just know I didn't want it, and I know I made it clear."

Delay a factor

Blanchard last week confirmed that his office declined to prosecute the case, which was investigated by campus police and forwarded to his office in May. He said it wouldn't be ethical for him to discuss his specific reasons for rejecting it.

In general, though, Blanchard said sexual assault cases involving long delays - Dunn waited 15 months to report hers - and alcohol use by victims and perpetrators can be harder to win in court.

"If jurors believe that inhibitions were down and everybody was drinking, it may be regarded as regretted but essentially consented sex," Blanchard said.

Blanchard stressed that declining to take a case doesn't necessarily mean prosecutors think it doesn't have merit.

"We certainly see cases in which we completely believe the account given by the alleged victim," Blanchard said, "but we have proof problems and we don't feel it's fair to anybody, including the victim, to charge and take to trial a case that we're pretty certain we're going to lose."

UW-Madison's Dean of Students office, which also investigated the incident, declined to levy any academic sanctions against the men. One of them had already graduated and moved away by the time Dunn reported the incident and the other also has graduated.

UW-Madison Police Chief Susan Riseling declined to discuss the case in detail. But she praised the change in the law, calling it "recognition that just because someone has used alcohol doesn't mean they are any less a victim/survivor."