Drug Induced Or Alcohol Induced “Date Rape” Part II of II – Colorado Sexual Assault Cases

by Colorado Criminal Defense Lawyer for the defense of Colorado Sex Crime Cases such as an alleged Drug Facilitated Date Rape – H. Michael Steinberg

Drug-Facilitated Date Rape

Drug-facilitated date rape is defined in Colorado legally as an allegation of the use of drugs to assist in the commission of the crime of sexual assault. The drug can be any substance that is physical or mind altering.  

Two Main Drugs Are Used: Rohypnol and Ketamine

Rohypnol (trade name for Flunitrazepam), is commonly known as a “club drug” because it is usually used in dance clubs and raves.

Rohypnol street names include:

Circles, Forget Pill, LA Rochas, Lunch Money, Mexican Valium, Mind Erasers, Roach, Roopies, Roofies, R-2, Roches Dos, Rope, Rophies, Stupifi, Shays, etc.

Ketamine is also commonly known as:

Black Hole, Bump, Cat Valium, Green, Jet, K, Kit Kat, Psychedelic heroin, Purple, Special K, Super Acid, Keller, Super C, etc.

Issues and Defenses In Drug Based Date Rape Cases

Sex crime charges generally pit the word of the accused against the word of the victim. The accused should NEVER be tempted to plead guilty early in these cases. Instead, a long and aggressive investigation should be started before charges are even filed – if possible

Immediately Locate The Possible Physical Evidence That Was Left

Physical evidence may be available immediately after the alleged act. This evidence can be used in the defense of the allegations if it is located and seized. The defense of sex crimes is very different from other areas of criminal defense law and requires very specific techniques and experience.

The use of psychologists, medical experts, private investigators and an attorney with the expertise to use these tools…is critically important. A common defense strategy is to deny that the alleged sexual act occurred in the first place or that the sexual act did not involve the defendant. DNA and other forensic evidence may be used to support this defense.

Consent – that is arguing that the act was consensual is another defense. This requires skilled argumentation and may depend strongly on the use of psychologists, character witnesses and expert private investigation services.

Scrutinizing The Police Investigation of Drug-Facilitated Acquaintance Rape

When a case of alleged drug-facilitated rape is reported to the police, the investigation should focus on:

1. Determining if sexual acts that meet the legal definition of rape, attempted rape or other types of sexual assault actually occurred,
2. Determining if the victim was under the influence of drug or alcohol to the extent that she was unable to consent or to resist a sexual assault,
3. Determining the extent to which the victim was a willing or inadvertent participant in the use of drugs,
4. Identifying the alleged perpetrator,
5. Determining if the alleged perpetrator had access to the drugs that were either identified by toxicological findings or that are consistent with the victim’s account of the effects of the drugs that may have been used to facilitate the offense.

The nature and course of the investigation will depend to a significant extent on how soon after the alleged assault a report is made. In cases where reports are delayed for even a few days, for example, neither toxicological evidence nor medical examination of the victim can provide any useful information. In such cases, the investigation must focus primarily on interviews with the alleged victim, the alleged perpetrator and others who may have witnessed the events preceding the assault or the assault itself.

To the extent that the investigator believes that a sexual assault did take place, the investigation should focus on a search for other possible victims of the alleged perpetrator, friends of the alleged perpetrator who may have witnessed the assault or were told by the perpetrator that it did occur.

Search Warrants In Colorado Sexual Assault Cases

A pretext phone call ( see below ) to the alleged perpetrator by the alleged victim may also be used to obtain direct physical evidence that the assault actually took place. If there is sufficient evidence to obtain a search warrant, the investigator may then conduct a search for videotaped recordings or for evidence that of the possession of the illicit drugs that may have alleged to have been used in the offense.

Police investigators are trained to NEVER doubt the credibility of the reporting victim simply because she failed to make an immediate report or because her impaired memory of the events leave her uncertain about what actually occurred. …..They ARE taught that “victim confusion” and delayed reports are the result of the planning of the alleged offender who encouraged to use drugs to facilitate their sexual assaults because they believe themselves to be immune to prosecution and will not be caught for these very reasons.

When the report is made immediately after the assault or within a few days thereafter, toxicological findings may confirm that the victim had used drugs and/or alcohol that may have been given to her without her knowledge or against her will.  Because all of the drugs — except alcohol — implicated in cases of drug facilitated sexual assault are excreted from the body more-or-less rapidly, blood rather than urine samples should be submitted for toxicological examination. The presence of drugs in blood is indicative of relatively recent use, whereas their presence in urine does not.

The Alleged Victim’s Abuse of Drugs

Alcohol and many of the drugs — including Rohypnol and GHB — that are commonly used to facilitate sexual assaults are used recreationally, and the detection of these drugs does not always lend credibility to the alleged victim’s accusation, and may not necessarily be of probative value.

If the alleged victim has a history of recreational drug use, for example, positive toxicology findings are of little help determining that she was drugged without her knowledge or against her will.

Labs May Not Test For Date Rape Drugs

Many toxicology laboratories do not routinely test for GHB, MDMA, scopolamine and some other drugs can be used to facilitate sexual assaults, and that when blood rather than urine samples are submitted for testing, the failure to detect the presence of drugs does not necessarily mean they were not used.

To determine if the alleged victim’s belief that she was drugged is credible, the investigator will look for the signs and symptoms of the use of all of the commonly used “date-rape” drugs so that he or she can determine if the victim’s account of her experiences is consistent with their effects.

The competent police investigator will seek to obtain as detailed an account as possible of the alleged victim’s experiences. …especially in cases where the drug or drugs that may have been used cannot be confirmed. The investigator will ask the alleged victim to recall whatever she can prior to the time she began to experience the effects of drugs she may have been given, and later  about her feelings of intoxication.

From this information the investigator attempts to identify what drugs may have been involved.

If, for example, she reports that she felt very relaxed and drowsy before losing consciousness she may have ingested Rohypnol or some other sedative-hypnotic drug. If she reports having felt giddy, “drunk-like”, and then “nodded” off and on for a while before losing awareness of events, it is more likely that she had been given GHB.

The Issue of Drug Induced Amnesia

Drug-induced amnesia may or may not exist. If it does exist it is rarely either total or permanent. If it occurs, the police will start the investigation by carefully probing for seemingly trivial details that may trigger the recall of events that were previously lost to memory. Pressing for details of the alleged assault or focusing on information too soon in the interviewing process is likely to be unproductive and is subject to attack and should be attacked by the competent criminal defense lawyer.

So the police will often resort to a number of interviews over a period of weeks.. Again these may be attacked during trial as having been influenced by the interviewing process itself.

Delayed Reporting of Date Rape – Impact On Proof

If the reporting of alleged drug facilitated date rape is delayed – the investigation sometimes changes focus. The new focus is on interviews of the alleged victim, the alleged perpetrator and all others who may have either witnessed or have knowledge of what may have occurred.  The use of so called “pretext phone calls” and a search for other possible victims and physical evidence is also considered if there is sufficient cause.

The chances of obtaining sufficient evidence to prosecute a perpetrator are slim when reports are delayed.

In this context, a pretext phone call is usually a digitally -recorded telephone call between the victim and the suspect. The call is usually initiated by the victim, under the supervision of a law enforcement officer. The suspect is unaware that the call is being recorded. This technique may be referred to by different terms, including “confrontational calls,” “pretense calls,” “taping,” “consensual taping,” “monitored calls,” etc. They are legal in Colorado but not all states.

Finally, when cases of drug-facilitated sexual assaults are reported soon after the alleged events, the investigator looks for – searches for physical evidence at the scene of the alleged drugging and other locations at which the victim and perpetrator were together. Traces of drugs, for example, are sometimes found on glasses from which the victim drank, in containers used to mix drinks, or in discarded bottles that may have contained drugs, especially those that are available in liquid form.

A Closer Look At The “Date-Rape” Drugs …

Rohypnol and GHB are most often referred to as “date-rape” drugs. Women who believe that they have been drugged and sexually assaulted are most likely to believe that one of these drugs was used to facilitate the assault. While there is little evidence to demonstrate that this is the case, there is no question that the popularity, availability and use of both drugs has grown dramatically in recent years.

The information provided below was obtained primarily from websites maintained by the Office of National Drug Control Policy (ONDCP), the Drug Enforcement Administration (DEA), the National Institute on Drug Abuse (NIDA) and a number of other governmental agencies and organizations.

Rohypnol

Background: The Swiss pharmaceutical company, Hoffman-La Roche first developed benzodiazepines in the 1950s. Since then, modifications of the basic benzodiazepine structure have led to the introduction of many related tranquilizers. Rohypnol was first introduced to the market in 1975. Although Rohypnol is reported to be the most widely prescribed sedative-hypnotic drug in Western Europe it has never been available for medical use in the United States.

Rohypnol, apparently brought in to the United States from Mexico, became available in Florida and Texas in the early 1990s. An increasing number of seizures of Rohypnol and related drugs by law enforcement officials led to the formation of a Texas-Florida Rohypnol Response Group that, in 1995, actually suggested closing the border to cut off the supply of these drugs.

The first reported case of the use of Rohypnol in a drug-facilitated sexual assault occurred in Florida in early 1992. Additional cases reported in Florida rose from 11, in 1992 to 38 in 1993, 144 in 1994 and 342 in 1995. Los Angeles began to identify cases of Rohypnol-facilitated rape in 1995. To date more than 2500 cases of sexual assault believed to involve the use of Rohypnol have been reported to law enforcement agencies throughout the country and reports of additional cases are reported by media news sources almost every day.

Appearance: Royhypnol tablets manufactured by Hoffman-La Roche come in the form of small, white tablets that are either single or double-scored on one side and are inscribed on the other side with the name ‘Roche’ and the encircled number 1 to designate a 1.0 mg dosage.6 It is commonly encountered in a clear plastic blister pack, but has also been found unpackaged or in containers marked “Roche Vitamins”. Very rarely, it is found in liquid form, or crushed into power form. In solution, the drug is colorless, odorless and tasteless. The price of a single tablet ranges from $2.00 to $5.00.

Because of concerns about the illicit use of Rohypnol in sexual assaults and other crimes, Hoffman La-Roche reformulated the drug in 1998. The new Rohypnol is a hard green oval tablet with a coating that make it dissolve slowly; it also contains a strong blue dye designed to color any liquid in which it is dissolved, making improper use more difficult. Although the green oval tablets in 0.5 and 1.0 mg doses are currently used throughout the world, except in Japan, the white tablets remain available to illicit users in the United States.

Uses: Rohypnol is a central nervous system depressant or sedative-hypnotic drug that was prescribed primarily for the treatment of insomnia and related sleep disorders. Its effects are similar to that of Valium — a closely related benzodiazepine, but it is estimated to be ten time more potent. Rohypnol has also been used to relieve depression following withdrawal from the use of stimulants such as methamphetamine and cocaine. The use of Rohypnol and alcohol to enhance the subjective effects of heroin or to reduce the severity of withdrawal from heroin or methadone has also been reported.

Effects: Rohypnol is typically ingested orally, but it may also be snorted (insufflated), smoked or injected. Effects of the drug begin within 15 to 30 minutes after oral ingestion, peak within two hours, and may persist 8 to 12 hours or more. Symptoms include decreased blood pressure, drowsiness, visual disturbances, dizziness, confusion, impaired memory, nausea, gastrointestinal disturbances and urinary retention. Many users experience amnesia for events occurring for as long as 8 to 10 hours after ingestion of the drug while others report less dramatic impairment of memory.

While most users fall asleep within two hours after using the drug, others may have experiences that resemble an alcoholic “blackout” in which they appear to be awake and able to function normally even though their conscious control of their behavior is significantly impaired and they are unaware of what they are doing. In many cases, the person is unaware that they are under the influence of a drug even when they are acting in an uncharacteristic manner (e.g., Dowd et al., 2002). In cases of drug-facilitated assault this may result in the victim engaging in sexual behavior in a state of automatism or dissociation in which they lack the ability to either consent or resist. When the victim awakens 10-12 hours later, she may be fatigued, confused, and unable to focus attention for as long as two days thereafter.

The victim typically cannot give a full account of what occurred while she was under the influence of the drug, but she may have glimpses of memory where she recalls fragments of people, place and events, many of which are trivial and incidental to the sexual assault. She may recall, for example, being in a dark place that had a pretty picture hanging over the bed, asking a tall man for a glass of water, having someone pull off her pants, and riding in a big car with nice music playing on the radio. The initial reports of these experiences may be related without regard for the order in which they occurred, without emotion, and without understanding what they signify. Only with the passage of time, and often with the assistance of others, will the victim begin to weave these fragments together, to recall additional details, and eventually to assist in the investigation of the offense.

Toxicology: Baselt & Cravey (1995) report that while the half-life of Rohypnol ranges from 9 to 25 hours, plasma levels of the drug drop off rapidly after ingestion. The drug may be detected in urine samples for five days or longer, but only if the level of detectability is set to 0.02 ng/ml rather than the 0.20 ng/ml cut-off level used in many laboratories. Although most laboratories test for benzodiazepines, they may not routinely screen for Rohypnol. Negative findings for Rohypnol, therefore, do not necessarily rule out the possibility of it’s use (Negruz & Gaensslen, 2003). Because the most commonly used presumptive tests (Emit, FPIA and Online) often yield false negative results for Rohypnol, it is always preferable to use GC/MS analysis when its use is suspected.

Legal status: Until 1996, travelers could declare up to 180 doses of Rohypnol for personal use if they had a foreign prescription. This is no longer the case. Although Rohypnol is available as a prescription drug in more than 60 European and Latin American countries, it is not manufactured or sold legally in the United States.

Rohypnol is currently classified as a Schedule IV substance under the Controlled Substances Act of 1970. Schedule IV drugs are considered to have legitimate medical uses, but also have a potential for abuse and for the development of physical or psychological dependence.

GHB

Background: Gamma hydroxybutyrate (GHB) is classified as a “nutrient” that is found in all mammalian tissue. It was first synthesized in the 1920’s. It is a powerful, rapidly acting central nervous system depressant that has been investigated for the treatment of a number of disorders, including alcohol dependence. GHB was used as a general anesthetic in the 1960s and 1970s, but it never gained wide acceptance in clinical practice except in the treatment of narcolepsy.

More recently, GHB has been used by bodybuilders, who believed that it stimulates the body’s production of growth hormone. GHB was sold in health food stores until the Food and Drug Administration (FDA) banned it in 1990.

The chemical “recipe” for GHB, and kits containing precursor chemicals, equipment and detailed instructions to make it are available on a number of internet sites. The two basic ingredients of GHB are GBL (gamma-butyrolactone) and lye (sodium hydroxide). Muriatic acid or vinegar is also used in the manufacturing process. Because almost all of the GHB available to street users is made in home laboratories, samples of the drug vary widely in their chemical composition and purity.

When ingested, the precursor drug, GBL, produces a clinical picture very similar to that of GHB, but its effects persist for considerably longer. GBL is also sold in health food stores as a dietary supplement under such trade names as ‘Renewtriant’, and ‘Revivarant’ ; it is known to users as ‘blue nitro’ and ‘firewater’. GBL is also available as an industrial solvent used for stripping floors and degreasing machinery.

Appearance: GHB is a clear, liquid substance that looks like water. It is carried in water bottles, or any other container that can hold a small amount of liquid, including purse-size hair spray, children’s bubble containers (very common at raves) or vitamin pill bottles. It is also starting to be seen in powder form, in capsules or in a putty-like form.

Uses: GHB is now a drug of choice in the club and rave scene — especially in Los Angeles — where it is prized for its ability to cause euphoria without any residual “hangover” effects. Recreational users generally buy capfuls (the size of a water bottle cap) or sip on a diluted GHB mixture as they dance throughout the night. The price of a capful of the drug typically ranges from $25 to $40. Because it is naturally present in human tissue, many users assume that GHB is harmless.

In cases of drug-facilitated sexual assault, GHB is typically mixed into an already strong alcoholic drink to try to mask the salty and unpleasant taste of the drug. GHB is rapidly absorbed into the bloodstream, with peak levels occurring 20 to 60 minutes after ingestion.

Effects: Although it is known as a nutrient or steroid, GHB acts as sedative-hypnotic drug or central nervous system depressant. Like alcohol, low doses of GHB result in giddiness and lowering of inhibitions that may cause female users to be sexually aroused and to behave in an uncharacteristically flirtatious and. provocative manner. Higher doses lead to relaxation and progressively increasing loss of consciousness as the user become drowsy, begins to “nod” off and eventually falls asleep. Depending on the dosage, the victim may initially look and act “drunk” before passing out.

The ability of the drug to lower inhibitions, arouse sexual interest and cause women to be more receptive to sexual advances may account for at least some of its popularity as a ‘club drug’. Its ability to subsequently cause an increase in submissive and compliant behavior as the user begins to lose consciousness and to move from drowsiness to sleep may account for its use in the facilitation of sexual assaults.

The effects of GHB on memory are similar to those described above for Rohypnol, particularly when the dosage is sufficient to cause a loss of consciousness.

Toxicology: GHB is excreted very rapidly from blood. With its estimated half-life of only 20 minutes, it cannot be detected in blood samples within four or five hours after ingestion. It may be detected in urine for 72 to 96 hours.

Please Call Us…

When the use of GHB is suspected in a case of drug-facilitated sexual assault, (or when no information points to any specific drug) it is important for the investigator to realize that most laboratories do not routinely test for GHB and that many are unable to do so. Because GHB is normally found in human tissue, especially careful evaluation of toxicology findings is required in the identification of GHB when it is used as a drug.

GHB remains legally available in Europe and from other foreign sources, some of which continue to offer it for sale on their internet sites.

To discuss your alleged alleged Drug Induced Date Rape case case right now ( if this is urgent ) with H. Michael Steinberg – personally  please call his cell (720) 220-2277 or fill out the Contact form on this site. From our office in Denver, Colorado, we represent clients throughout the Front Range of the State of Colorado

H. Michael Steinberg has been a Colorado criminal law specialist attorney for 29 years. For the First 13 years, he was an Arapahoe – Douglas County DA – career prosecutor. In 1999 he formed his own law firm for the defense of Colorado criminal cases. He has published various articles regarding the practice of criminal law and frequently provides legal analysis on radio and television, appearing on the Fox News Channel, CNN and Various National and Local Newspapers and Radio Stations.

Again – if you feel the need to discuss your case right now with H. Michael please call his cell (720) 220-2277, otherwise call his office during normal business hours, or fill out the Contact form on this site. From our office in Denver, Colorado, he represent clients throughout the Front Range of the State of Colorado.