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Arizona Law Review


rape, sexual assault, drugs, drugging, intoxicant, intoxication, incapacity to consent, nonconsensual sexual activity, GHB, Rohypnol, ketamine, degree of incapacitation, state statutes


The methods by which human beings accomplish nonconsensual sexual activity with fellow humans are almost limitless. They use physical force; they beat, choke, and knock their victims unconscious. They kidnap and restrain them. They use weapons and threats of immediate force to subdue their quarry. They come in groups with the superior strength of their number. They exploit the element of surprise. They coerce, extort, and blackmail others into sexual submission. They lie, pretend, impersonate, and defraud, trapping the unwary in webs of deceit. They victimize mentally ill, mentally disabled, physically weak, and physically incapacitated persons. They abuse their positions of trust and authority to overcome their patients, clients, students, foster children, and prisoners. They sexually assault members of their own families. They prey on children. Another common method of engaging in nonconsensual sexual activity can be described generically as rape by drugs or other intoxicants, which actually encompasses two separate although related offenses. The first offense consists of administering an intoxicant to the victim, which incapacitates her, and then engaging in nonconsensual sexual intercourse with her (i.e., administration of intoxicant incapacity to consent due to intoxicant nonconsensual sexual activity). The second offense involves sexually assaulting a victim who has become incapacitated by alcohol or drugs by self-administration or for reasons unrelated to the defendant (i.e., incapacity to consent due to intoxicant nonconsensual sexual activity). Both methods of sexual imposition are probably as old as rape law itself; certainly very early formulations of Anglo-American rape law took them into account. Part II discusses the extant cases. Part III provides an overview of American statutory law criminalizing both types of rape by drugs. Part IV offers some suggestions for statutory reform.