Bring drug-rape prosecutions to par
Despite jurors’ inability to reach a verdict, the Bill Cosby trial was a watershed moment. The testimony of Andrea Constand, who accused Cosby of drugging her and then forcing unwanted sexual contact, shone a much-needed light on the insidious and underrecognized crime of drug-facilitated sexual assault, or drug rape.
Only a small percentage of rapes result in prison time for the perpetrators, many of whom are repeat offenders — and as advocates, we have seen survivors of drug rape face unique obstacles to holding perpetrators accountable. These barriers can and must be overcome, by careful efforts to amass the evidence necessary for successful prosecution.
Predators often use drugs that are difficult to detect — either because they dissipate quickly from the blood and urine, or because they are newly synthesized chemicals for which police labs have not even developed a test.
When a survivor’s blood and urine test negative for known substances, too many law enforcement officials close the investigation, concluding that no drug was used and no crime was committed. The survivor’s anguish in the aftermath of rape is compounded when he or she is told that what happened must have been consensual.
Police and prosecutors must do better. When toxicology fails to identify a drug but the victim’s symptoms indicate that one was used, prosecutors should consult drug recognition experts. These experts can sometimes conclude that a victim’s distinctive symptoms cannot be explained by alcohol consumption alone, and that they point instead to a drug in a particular category.
Resourceful prosecutors in multiple states have won convictions for drug rape, despite negative toxicology, with the help of such experts. Detectives can help build strong cases by acting quickly to collect corroborating evidence.
Medical care providers, especially emergency room personnel, also have a critical role. In too many of our cases, sexual assault victims have been kept waiting for hours before their blood or urine was collected — while evidence of a predatory drug may have been metabolized away right there in a hospital waiting room.
Hospitals should adjust their intake protocols so that patients reporting sexual assault are asked immediately if they experienced any symptoms of drugging and are offered the chance to give blood or urine samples without delay.
Legislators must act as well. Statutes like those in New York and Washington, D.C., that require proof that a victim was unconscious make sexual assault difficult or impossible to prosecute in circumstances like those reported by Constand, who testified that Cosby assaulted her while she was conscious and aware of what was happening but rendered immobile and defenseless by a drug.
Lawmakers can find a better model in states like California, where it is a crime to have sex with a person who is “prevented from resisting” by an intoxicating substance. And communities can take action by electing district attorneys who don’t just profess to take rape seriously, but who demonstrate it by prosecuting challenging sex crime cases, including acquaintance rape and drug rape.
Kevin Steele, the Montgomery County, Pa., district attorney, doggedly pursued charges against Cosby even though his predecessor failed to do so. DAs have wide discretion in deciding which crimes to devote energy and resources to prosecuting. When the public makes it clear that sexual assault is a top priority, district attorneys take notice.
Constand and the other dozens upon dozens of women who spoke out as Cosby survivors have pushed the issue of drug-facilitated sexual assault into the public conversation where it belongs. We owe it to these courageous women to take action, to change the reality that only a small fraction of survivors ever get justice.
“We stand in truth,” read the buttons worn by survivors and their supporters at the trial. The rest of us now have the opportunity to stand with them.