The second way that the defense can argue the consent defense is to try to prove the victim consented to the intercourse, but does not remember due to a high level of intoxication at the time of the crime. Defendants who make this argument portray the incident as drunken sex, as opposed to rape.

This line of attack is palatable to jurors because the victim is not vilified; rather, he or she is portrayed as being mistaken. The defense will try to make it look as though the victim blacked out and forgot large periods of time. Often the defendant will testify that the victim does not remember that he or she behaved promiscuously and possibly even the initiated sexual contact.

Some defense attorneys bolster this argument by calling an expert witness to say the victim blacked out. They may use a toxicologist, pharmacologist, emergency doctor, or someone with expertise in blackouts.

The blackout defense is particularly common in cases where the victim was unconscious at the time of the rape. However, there are a number of steps that can be taken when this defense is raised.

First, if expert testimony is to be proffered, the prosecutor should ask the judge to hold the defense to discovery rules and mandate release of the current curriculum vitae of their experts. Prosecutors must make sure that the proposed expert is qualified to testify on the topic. If not, object.⁹⁷ Prosecutors should also request a written report from the expert.

Second, prosecutors should object on relevance grounds. Until there is evidence in the record that a blackout occurred, there is no factual basis to admit this testimony. Prosecutors should force the defense to proffer testimony that will support the introduction of the blackout testimony.

Unless the witness can diagnose the victim as having suffered from a blackout at the time, any expert testimony would only lead the jury to speculate about whether the victim was in an alcoholic blackout. Such speculation would be more prejudicial than probative.⁹⁸ Prosecutors can file a motion in limine to preclude the defense from using the term “blackout” unless there is evidence on the record to show what occurred was actually a blackout, and not just inconsistencies in the victim’s memory or testimony. If a defense expert uses the “blackout defense,” the victim must be very clear about what she does and does not remember. If she is certain of something for a particular reason, she should explain the reason. The prosecutor must be prepared to cross-examine the expert well.

 

The following questions can be asked when cross-examining the defense expert:

Blackout vs. Pass-Out

• Blackouts do not involve a loss of consciousness, correct?
• The conditions blacking out and passing out are mutually exclusive, aren’t they?
• When a person is passed out, they are unconscious, correct?
• When a person blacks out, they are conscious, correct? A blackout is simply when a person cannot remember what happened during a time period because their brain was not recording memories during that time, isn’t that true?
• If a person blacked out, they would know they “lost time” right? In other words, they were not recording any memories during the black out, correct? If that person passed out, they were not observing anything because they were basically asleep, correct?
• Assume that a person experienced a blackout. During the time period of the blackout, they were able to perceive what was happening at the time it happened, correct?
  • “Intoxicated subjects are typically able to repeat new information immediately after its presentation and often can keep it active in short term storage for up to a few minutes if not distracted.”⁹⁹
  • Alcohol seems to influence most stages of the process of memory formation, storage, and retrieval to some degree, but its primary effect appears to be on the transfer of information from short-term to long-term storage.¹⁰⁰

Subjective

• Your opinion is based upon facts gained by talking to the defense or the defendant, isn’t it?
  • “[M]ost of the evidence of a blackout is provided by subjective recall from the accused and so may be of questionable veracity.”¹⁰¹
• If the victim’s testimony is true, then this theory of blackout would not apply, would it?

Scientific issues

• There is widespread debate in the medical and scientific communities regarding the evaluation and diagnosis of blackouts, right?
• Isn’t it true that there is no scientific consensus as to what constitutes a blackout? Isn’t it true that there is no way to do any scientific tests to determine whether the victim had a blackout?

Studies

If the defense cites any studies, be sure to be familiar with the studies and how they were done. “Although alcohol blackouts have been defined as evidence of both alcohol misuse and alcohol dependence in the majority of formal diagnostic systems, they remain an enigma.”¹⁰²

• What was the purpose of the study?
  • Early research into alcohol induced blackouts began in the 1940s with the work of E.M. Jellinek (1946).¹⁰³ Jellinek’s initial characterization of blackouts was based on data collected from a survey of Alcoholics Anonymous members. Noting that recovering alcoholics frequently reported having experienced alcohol-induced amnesia while they were drinking, Jellinek concluded that the occurrence of blackouts is a powerful indicator of alcoholism.¹⁰⁴
  • This research was never intended to analyze the nature of blackouts on the brain; rather, it was intended to determine whether blackouts could serve as a predictor of alcoholism. “For a long time, alcohol induced blackouts were merely studied as predictors of future alcoholism.”¹⁰⁵ Moreover, some studies were done on people who were defendants in the criminal justice system who had raised the issue of having an alcoholic blackout as a defense. Naturally, the subjects in these studies would have a motive to answer questions in a certain way. In these surveys, “strategic goals may motivate blackout claims.”¹⁰⁶
• How was the study done?
  • “Most of the research conducted on blackouts during the past fifty years has involved surveys, interviews, and direct observation of middle-aged, primarily male alcoholics, many of whom were hospitalized.”¹⁰⁷
  • Blackouts only affect memory of events that occurred during the intoxicated state. “Although alcohol impairs short-term memory, which may interfere with storing information about ongoing behavior, remote memory remains intact.”¹⁰⁸ “Thus, even during a blackout, a person should be aware that what he is about to do is wrong.”¹⁰⁹

Intoxication issues

• If a person drank only beer, it is unlikely that she experienced a blackout, correct?
  • In a study conducted by White et al., only one subject indicated (s)he drank beer alone before experiencing a blackout. Most subjects (forty percent) drank either liquor alone or a combination of beer and liquor (forty-two percent).¹¹⁰
• When a person is drunk enough to black out, she is extremely intoxicated, correct?
• What other signs of intoxication would she show?
  • The prosecutor can then argue that the offender should have known that the victim could not consent.
  • “As the amount of alcohol consumed increases, so does the magnitude of memory impairments.”¹¹¹ “There is agreement that the en block type of blackout requires the ingestion of large amounts of alcohol; a high blood alcohol level (BAL) is usually a necessary component.”¹¹²
  • The plausibility of a blackout claim at a BAC less than 250 mg/mL is doubtful.¹¹³ One study estimated peak BACs during the night of a blackout to be thirty percent for men and thirty-five percent for women.¹¹⁴
  • If the defense expert states that a person may experience a blackout and may or may not appear to be intoxicated, remember the history of research into blackouts. “Clinical research has focused primarily on cognitive impairments and memory deficits among alcoholics.”¹¹⁵
  • “Until recently, much of the information we had about behavior exhibited while in a blackout state was derived from members of Alcoholics Anonymous.”¹¹⁶ An alcoholic is likely to have a higher tolerance for alcohol and is less likely to exhibit signs of being intoxicated. Several studies show that the average number of drinks before blackout was approximately fifteen in four hours.¹¹⁷

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⁹⁶ This Appendix was excerpted from Teresa Scalzo, Prosecuting Alcohol-Facilitated Sexual Assault, NAT’L DIST. ATT’Y ASS’N, 35-39 (Aug. 2007), http://www.ndaa.org/pdf/pub_prosecuting_alcohol_facilitated_sexual_assault.pdf.

⁹⁷ See Ragsdale v. State, 23 P.3d 653 (Alaska 2001). In Ragsdale, the court held that the proposed defense expert, an outpatient alcohol counselor, was not qualified to give expert testimony on the topic of alcoholic blackouts. The proposed expert did not have expertise in diagnosing whether a person might have been experiencing an alcoholic blackout based upon the individuals’ alcohol consumption or behavior.

⁹⁸ Id.

⁹⁹ See Aaron M. White, What Happened? Alcohol, Memory Blackouts and the Brain, Nat’l Inst. on Alcohol Abuse & Alcoholism (July 2004), https://pubs.niaaa.nih.gov/publications/arh27-2/186-196.htm (last visited June 15, 2017).

¹⁰⁰ Id.

¹⁰¹ Robert P. Granacher, Jr., MD, Commentary: Alcoholic Blackout and Allegation of Amnesia During Criminal Acts, 32 J. Am. Acad. Psychiatry L. 371-72 (2004).

¹⁰² Karen M. Jennison & Kenneth A. Johnson, Drinking-Induced Blackouts among Young Adults: Results from a National Longitudinal Study 29(1) Int’l J. Addictions 23, 24 (1994).

¹⁰³ Elvin Morton Jellinek, Phases in the Drinking History of Alcoholics: Analysis of a Survey Conducted by the Official Organization of Alcoholics Anonymous 7(1) Q.J. Stud. Alcohol 88 (1946).

¹⁰⁴ White, supra note 99.

¹⁰⁵ Kim van Oorsouw et al., Alcoholic Blackout for Criminally Relevant Behavior 32 J. Am. Acad. Psychiatry L. 364, 365 (2004). Note that later studies show that twenty-five percent of “healthy college students report being familiar with alcoholic blackouts.” Id.

¹⁰⁶ Kim van Oorsouw et al., Alcoholic Blackout for Criminally Relevant Behavior 32 J. AM. ACAD. PSYCHIATRY L. 364, 365 (2004). Note that later studies show that twenty-five percent of “healthy college students report being familiar with alcoholic blackouts.” Id.  

¹⁰⁷ White, supra note 99.

¹⁰⁸ van Oorsouw, supra not 106, at 365.

¹⁰⁹ Id.

¹¹⁰ Aaron M. White et al., Experiential Aspects of Alcohol-Induced Blackouts Among College Students, 30(1) Am. J. of Drug & Alcohol Abuse 205 (2004).

¹¹¹ White, supra note 99.

¹¹² Karen M. Jennison & Kenneth A. Johnson, Drinking-Induced Blackouts among Young Adults: Results from a National Longitudinal Study 29(1) Int’l J. Addictions 23, 24 (1994).

¹¹³ van Oorsouw, supra note 106, at 370.

¹¹⁴ White et al., supra note 110, at 216.

¹¹⁵ Jennison & Johnson, supra note 112, at 23-24.

¹¹⁶ Id. at 26.

¹¹⁷ van Oorsouw, supra note 106, at 369.