Alcohol, Drugs and Sexual Assault

It’s well-established that at least half of sexual assaults occur after the perpetrator or victim or both consume alcohol. The National Institute of Justice reports alcohol use can increase the risk of sexual assault because:

• It leads to increased aggression/ inability to accurately interpret the other person’s sexual interests.
• Researchers have shown college students tend to believe dates are more likely to include sexual intercourse when both participants drink.
• Surveys of sexual assault victims (half college students) found women drinking before an assault took place indicated their intoxication made them take risks they might have otherwise avoided.
• Alcohol consumption can undermine one’s ability to resist a sexual assault or advance.

Absolutely none of this is to say that victims are at-fault for sexual assault, but rather that alcohol and/ or drugs can play a role. It is sometimes used as a tactic by defense attorneys in both civil and criminal cases, but it can also be used by prosecutors/ plaintiffs (i.e., the victim was too drunk to give consent).

At The Ansara Law Firm, our Fort Lauderdale sexual assault attorneys know that victims of sex crimes may have several ways in which they can seek justice and accountability. These include:

• The criminal case (though victims do not have control over that process and the proof burden is high).
• Civil litigation, which can be taken against the perpetrators, but also third-parties, such as fraternities, hotels, alcohol vendors and others who may have breached a duty of care and resulted in an unreasonable risk to guests and patrons.
• Title IX action, which is a federal civil rights law filed against colleges or universities for violation of the prohibition against discrimination on the basis of gender in any educational program or activity that receives federal funding.

Victims of sexual crime may be eligible for financial assistance for medical care, lost income, mental health services and other out-of-pocket expenses related to the attack.

What is Consent?

Consent is generally understood to mean the intelligent, knowing and voluntary consent to a mutually-agreed upon sexual activity. It cannot be obtained by force, by ignoring or acting in spite of objections, by manipulation or assumption or from an individual who is incapacitated or intoxicated. Consent is not to be construed as meaning a failure by the alleged victim to offer physical resistance. This language is directly pulled from Florida Statute 794.011, which pertains to sexual battery.

For victims who are under the age of 16, consent can’t be used a defense to a sexual crime. Additionally, those who are 16 or 17 can’t legally consent to sexual activity with a person in a position of familial or custodial authority (i.e., a teacher, a coach, a foster parent, etc.) or to someone who is over the age of 24.

Alcohol can cloud the issue of consent, and it’s worth noting that intoxication doesn’t necessarily legally negate one’s consent. Unlike the legal limit for DUI, there is “bright line” for how intoxicated a person must be to be considered impaired enough to say yes or no to sex.

Florida statute on sexual battery classifies intoxication as a form of mental incapacitation, meaning one is temporarily incapable of appraising or controlling his or her own conduct due to the influence of a narcotic, anesthetic or intoxicating substance – regardless of whether that substance was administered with or without her consent, or due to any act committed upon that person without his or her consent. Intoxication might also fall under the category of “physically helpless,” which could include someone who is unconscious, asleep or for any other reason physically unable to communicate an unwillingness to act.

Many victims of sexual assault have the option to pursue civil litigation in addition to a criminal case, with potential legal theories including intentional torts (assault and battery) and negligence such as negligent hiring, negligent supervision and negligent retention.

TITLE IX Lawsuits

Schools that receive federal funding – which includes public and most private schools in K-12 and colleges and universities – are compelled by federal anti-discrimination law to ensure students have equal access to education regardless of gender identity or expression. Title IX addresses sexual harassment, sexual violence or any gender-based discrimination that could deny a person access to educational benefits and opportunities. These can include incidents that occur off-campus or involve people who are not students.

In general, schools have a duty to prevent and respond to claims of sexual harassment and sexual violence with a prompt and impartial process for investigating and adjudicating reported cases. They must also ensure there is no retaliation against the claimant, either from the school, the faculty or fellow students.

A Title IX civil lawsuit can be filed if an individual has reason to believe their school violated their Title IX rights, usually meaning the school knew or should have known about the sexual assault or harassment of a student, and yet failed to investigate it or handle it properly.

Title IX civil lawsuits can result in monetary compensation for students whose rights were violated, and courts have also ordered schools to alter or strengthen policies or procedures for handling these cases.

A dedicated sexual assault attorney in Fort Lauderdale can help you weigh all your legal options.

Contact The Ansara Law Firm for more information about pursuing a civil claim for damages after sexual assault, abuse or molestation. Call us at (954) 761-3641 for a free case review.

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