list-admin ABIGAILS-L: over the past couple of weeks, we have reported
(unfortunately) several date-rape/rohypnol cases. The following is a
fascinating account of 1) what is Rohypnol; 2) its effects; 3) common
crime scenarios; 4) prosecution strategies; 5) further contacts. Thanks
to Bob Nichols, Ft Lauderdale Prosecuter, the original author of this
memo, and Marc Dubin, government attorney & moderator of FAVNET and
informational resource of the memo.
Please crosspost to FEMJUR & other appropriate sites.
*****
Original Author: Bob Nichols, Ft Lauderdale, Florida
Crossposted By: Marc Dubin
Reformatted By: Jennifer Gagliardi
This memo was prepared by Bob Nichols, a prosecutor in Ft Lauderdale,
Florida, at my request. Bob is an exceptional prosecutor, and has more
experience prosecuting rohypnol-related rapes than anyone else I know.
Marc
*****
GENERAL CHARACTERISTICS
Flunitrazepam belongs to the class of drugs called benzodiazepines.
Rohypnol is the brand name for the flunitrazepam manufactured by Hofman
LaRoche. Flunitrazepam produces a spectrum of pharmacological effects
similar to that of other classical benzodiazepine such as diazepam. These
effects include skeletal mussel relaxation, sedation, reductions and
anxiety and prevention of seizures. Of these various effects, the
sedative/hypnotic effects are most important. With respect to sedative
effects, flunitrazepam is considered to be approximately seven to ten
times more potent than diazepam (i.e. Valuim) and four to eight times less
potent than Triazolam (i.e. Halcion).
Flunitrazepam is rapidly and almost entirely absorbed following oral
administration. Peak blood levels usually occur between one and two
hours. Entry into the central nervous system also is rapid. The effects
produced by Flunitrazepam appear with an onset of approximately fifteen to twenty minutes. Flunitrazepam is extensively metabolized primarily to the active metabolites, 7-aminoflunitrazepam and N desmethylflunitrazepam. Both of these metabolites are glucuronadated and eliminated via the kidney. Residual effects of the drug may be experienced twenty-four hours or later after the last dose.
Flunitrazepam is extensively marketed world wide, but is not available
for medical use in the United States. Flunitrazepam is marketed under a
variety of trade names, with Rohypnol being the most common. It is
usually supplied in one or two milligram tables. Where available,
Flunitrazepam is used primarily as a sedative/hypnotic. For the treatment
of insomnia, the usual dose is 0.5 to two milligrams taken at bed time.
Flunitrazepam is used either in the tablet or injectable form as a
preanesthetic medication prior to surgery. The injectable form is also
used as part of a dosage regime for the induction of anesthesia. (Note
that information from the above three paragraphs was taken from "General
Information on Flunitrazepam" prepared by James M. Tolliver, Ph.D.,
Pharmacologist for the DEA on December 28, 1995.)
INVESTIGATIVE SUGGESTIONS
For future reference, I would suggest the following steps be
undertaken when faced with a potential Rohypnol-rape case:
1. Obtain a urine and blood sample from the victim to
be screened for traces of Rohypnol metabolites,
(e.g. 7-aminoflunitrazepam). (There seems to be
some controversy as to whether Rohypnol can be
accurately detected in a blood sample.) Currently
there are nine identifiable Rohypnol metabolites
which can be identified in the screening process.
The sample should be obtained as soon as possible,
but at least within twenty-four (24) to thirty-six
(36) hours of the ingestion. The Rohypnol
but at least within twenty-four (24) to thirty-six
urine sample, and therefore may be tested at a
future date. Currently, the best method for
analyzing these samples appears to be, first, the
F.P.I.A. presumptive test followed by electron
captured gas chromatography. (The Emit system is
not a reliable test because it is designed to give
a positive reading at no less than 300 nanograms,
which is too low for Rohypnol metabolite
identification.) These samples should also be
tested for the presence of alcohol or other drugs,
so that a qualified toxicologist can testify as to
the synergistic effects of mixing alcohol or other
drugs with Rohypnol. Shouldyou need further
information regarding the laboratory analysis of
urine or blood samples, please call Dr. Thomas
Carroll, Chief Of Toxicology at the Palm Beach
County Medical Examiners Office: 561-688-4250.
2. Collect any containers that may have contained the
Rohypnol so that any trace amounts of Rohypnol in
the liquid or on the glass can be analyzed. Note
that although Rohypnol's active ingredients will
completely dissolve in the liquid, there may be a
granular residue that will be left floating in the
glass.
3. Send memos to local law enforcement agencies
detailing your particular set of facts, and inquire
whether any similar fact patterns have been
recently detected. You may find that the same
defendant has had other similar complaints against
him, but that no action was taken because it was
assumed that the victims were simply drunk or
forgetful. Similarly, you may find the same fact
patterns emerging from the same location.
4. Interview as many friends, enemies and
acquaintances of the suspect as possible regarding
his use of Rohypnol. Often, suspects have either
secretly drugged women in the presence of others,
or have bragged openly about other sexual conquests
using Rohypnol.
5. Try to determine whether the victim has used
Rohypnol in the past. A person can build up a
tolerance to the effects of Rohypnol, particularly
the loss of memory.
6. Interview the victim in great detail regarding the
symptoms she experienced. Although each person is
obviously different depending on their physical
characteristics, drug history and the amount of
Rohypnol and\or alcohol consumed, some common
characteristics include the onset of symptoms
within 10-20 minutes of ingesting the Rohypnol.
The victim often feels nauseous, dizzy and
disoriented (and, therefore, can easily be escorted
out of a bar, party, etc. by a suspect.) The
victim may then feel hot and cold flashes, followed
by difficulty speaking and moving their
extremities, and finally unconsciousness. The
victim may, however, awaken for brief periods, and,
therefore, may recall glimpses of the suspect
attacking her.
7. Since Rohypnol tends to erase a victim's memory, do
not expect a victim to come into the police station
with an accurate chronology of everything that
happened to her after she ingested the drug. Also,
a victim may feel "hung over" or somewhat
disoriented for several days; therefore, delayed
reports of Rohypnol rape may not be uncommon. Note
that this anterograte amnesia is quite commonly produced by
other drugs within the benzodiazepine class.
Anterograde amnesia is considered a positive effect
in the clinical setting where Rohypnol is used as a
preanesthetic medication (i.e. a patient using
Rohypnol will have no memory of most of the
unpleasant aspects of a surgical procedure.)
Ironically, this anterograde amnesia would also be
considered a positive effect by a defendant using
this drug on an unsuspecting victim.
8. Consider the possibility of wiring a victim, (or
conducting a controlled phone call), who may be
able to confront the suspect regarding the
circumstances surrounding their "sexual encounter".
9. Locate a qualified toxicologist in your area to use
as an expert in court regarding the effects of
Rohypnol on your victim. At the very least, a
toxicologist can educate a jury regarding the
effects of Rohypnol, particularly when mixed with
alcohol or some other drug. More importantly,
however, a good toxicologist can use apparent
weaknesses to strengthen your case, (or at least
neutralize the "weaknesses"). Consider the
following facts. A woman reports that while
drinking with a stranger in a bar, she suddenly
became disoriented, and vaguely recalls leaving the
bar with the man. Several witnesses testified that
the woman staggered out with her arm around the
man. She next recalls being in her house, with the
man as he tries to remove her clothing. Her next
memory is waking up naked in her own bed, with the
sensation of having had recent sexual intercourse.
She steadfastly maintains that she was raped, even
though she never screamed, she never struggled with
her assailant, and she showed no signs of physical
injury. In fact, the woman cannot even recall
telling the man "no". Moreover, the woman reported
feeling very "hung over" while at the police
station and had a very poor recollection of the
facts.
Obviously, these facts would seem to support a
defense of "consensual sex". The defense would
surely claim that the victim got drunk in the bar,
voluntarily left with his/her client, had
consensual, albeit drunken, sexual intercourse, and
then was too hung over to accurately recount the
events of that evening.
In a Rohypnol-rape case, however, these apparent
"weaknesses" can be exposed by a good toxicologist
as some of the classic symptoms of Rohypnol
poisoning: disorientation; staggering out of the
bar; inability to communicate or struggle with the
assailant; a "hung over" feeling and a poor
recollection of the facts.
Moreover, many facts which cannot directly be
addressed by a toxicologist, can still be explained
by the presence of Rohypnol, rather than consensual
sex. For example, just because a suspect escorts a
woman out of a bar or party and ends up in her own
bedroom, does not mean that he was invited there.
Indeed, the suspect may have drugged a stranger,
escorted her out into the parking lot, searched her
purse for her car keys, and used them to drive to
her residence, the location of which he learned
absence of any physical trauma is probably
irrelevant since the victim was already subdued by
Rohypnol. Obviously, then, great care must be
taken when evaluating the facts and circumstances
of a Rohypnol-rape case.
10. Rohypnol rapes are sometimes accompanied by
robberies (i.e., the victim may have been stripped
of her jewelry, etc., while unconscious).
Therefore, ask your victim whether she is missing
any personal property, which may turn up in the
suspect's possession or at a local pawn shop.
You may also expect many of these victims to experience enhanced
psychological trauma, including feelings of guilt due to their poor memory
and an inability to cope with the "facts" of the case, since they are
probably unaware of exactly what the suspect(s) did to her while she was
unconscious. Most victims are therefore at the mercy of their own
imaginations. Immediate psychological counseling is therefore recommended.
Obviously, these are merely some suggestions of the steps that can be
employed in a Rohypnol-rape case, in addition to the normal investigative
procedures for other rape cases. The bottom line is that although these
cases appear to be rapidly expanding across the U.S., they are extremely
difficult to properly investigate and prosecute, and require great care
and coordination between law enforcement agencies.
COMMON SCENARIOS
A common Rohypnol-rape scenario occurs when a victim visits a night club or party and is approached by a defendant (in many cases, for the first time.) The defendant will offer to buy the victim a drink, which he will retrieve himself. In some cases, the defendant may first smoke marijuana with his victim to make her thirsty. Because Rohypnol dissolves quickly, and is tasteless, colorless and odorless, it can be dropped directly into the drink.
The victim will feel the effects of the drug within about ten (10)
minutes, although the full impact does not hit her for at least an hour.
This gives the defendant plenty of time to casually escort the confused
victim to his car and drive away. Since the victim was seen both drinking
inside a nightclub and staggering out with the defendant, the defendant
conveniently has a room full of people to testify that the victim got
drunk and was voluntarily leaving with the defendant.
Within approximately fifteen (15) minutes of ingesting the Rohypnol
(depending on the amount ingested and the amount of alcohol and\or other
drugs ingested) the victim will feel drunk and confused. This may be
followed by hot and cold flashes, as well as nausea, followed by the
inability to speak clearly, and the apparent partial paralysis of the
victim's limbs. Eventually, the victim will pass out, but may wake up
intermittently during the rape.
After leaving the nightclub, the defendant can then either drive the
victim to his own home, or use the victim's home (i.e., the victim's
address and house keys and car keys can be found inside of her purse.)
Once alone and inside, the defendant has little trouble disrobing the
victim and having sexual intercourse with her. Some victims recall only
the initial physical advances by the defendant, while others wake up
during the sexual assault, and then pass out again. Many victims recall
waking up naked the next day with the feeling of recent sexual
intercourse. Many victims report that the effects of the drug did not
fully ware off for several days.
Unfortunately, one of Rohypnol's unique characteristics is the loss of
memory suffered by the victim. (Medical literature indicates that this
side effect is much less severe with frequent Rohypnol use.) Obviously,
this is one of the most difficult aspects of prosecuting a Rohypnol-rape
case. In addition, Rohypnol remains in the victim's urine in a measurable
amount for only about three days, which is barely enough time for a
drugged victim to "sober up" and contact the police. Fortunately, in many
cases the defendants could not resist bragging to friends about their
Rohypnol conquests, which, once discovered, provides the potential for
compelling testimony at trial.
Obviously, there are variations of this same scheme. In some cases, the
victim may be drugged while attending a party and subsequently raped at
the same house by multiple perpetrators. In other cases, the victim is
offered some other type of drug, and then given a Rohypnol instead. Note
that even where a victim voluntarily ingests Rohypnol, a suspect can still
be charged with rape of a physically incapacitated person under F.S.
794.011(1)(J) if the victim is rendered unable to resist the suspect.
Rohypnol users appear to fall into two main categories. The first group
includes young adult males who search for their victims in local
nightclubs as noted above. The second group includes high school
students, who are quickly adopting Rohypnol as their drug of choice. This
spans both public and private schools. Finally, Rohypnol has become very
popular with teenage gangs, where its use is frequently required for gang
initiation. Inaddition, teenage girls who attend gang parties often
willingly ingest Rohypnol, and are then raped by multiple parties once
they pass out.
Over the past year I have interviewed at least thirty (30) victims, all
in various states, who have described these exact scenarios, which match
the cases we have investigated in Florida. Unfortunately, as Rohypnol
continues to gain popularity, these scenarios and demographics will
continue to become more and more diverse.
GAMMAHYDROXYBUTYRATE - GHB
Unfortunately, there appear to be many illegal drugs which are also
widely available which mimic many of the symptoms produced by Rohypnol. One such drug which is rapidly gaining popularity in South Florida is gammahydroxybutyrate (better known as GHB). GHB is sometimes known on the streets as "grievous bodily harm", and is occasionally used as a dietary supplement by body buildings. GHB is a liquid which can render an unsuspecting victim unconscious with as little as a teaspoon mixed into a drink. The onset of symptoms comes within approximately five minutes, and reaches full strength within approximately fifteen minutes. The victim has a feeling of extreme intoxication and impaired judgement. GHB does not, however, produce the apparent muscular paralysis and extreme memory loss associated with Rohypnol. In addition, because GHB greatly intensifies the feeling of intoxication, it may actually result in enhanced sexual feelings by victim. Thus, a victim who has consumed a drink laced with GHB, may, as a result of the influence of the drug, engage in some reciprocal sexual acts with the defendant. Therefore, if you are investigating a case with Rohypnol like symptoms, but where the victim allegedly responded with some sexual acts, you will want to investigate whether the victim was acting under the influence of GHB. GHB can also be detected in the blood or urine, but only with extremely sensitive instruments, (e.g., gas chromatography employing flame-ionization, electron-capture, or mass spectrometric detection.) In addition, it appears that GHB will stay in the body in a measurable amount only for approximately six to twelve hours after ingestion.
For more information regarding GHB analysis, please contact Dr. Thomas
Carroll, Chief Of Toxicology at the Palm Beach Medical Examiner's Office:
561-688-4250.
POSSIBLE CHARGES
When faced with some of the above-noted scenarios, you may want to
consider the following potential charges. Obviously, these will depend
upon the facts and circumstances of your particular case.
These charges are based upon Florida law, but might be
applicable elsewhere, depending on the similarity of your statutes.
1. SEXUAL BATTERY OF A MENTALLY OR PHYSICALLY
INCAPACITATED PERSON, F.S. 794.011(4)(d)
When the offender, without the prior knowledge or consent of
the victim, administers or has knowledge of someone
else administering to the victim any narcotic,
anaesthetic, or other intoxicating substance which
mentally or physically incapacitates the victim.
a. "Mentally incapacitated" means temporarily
incapable of apprising or controlling a person's
own conduct due to the influence of a narcotic,
anesthetic or intoxicating substance administered
without his or her consent, or due to any other
act committed upon that person without his or her
consent. F.S. 794.011(1)(c).
b. "Physically incapacitated' bodily impaired or
handicapped and substantially limited in
ability to resist or flee. F.S.
794.011(1)(j).
2. SEXUAL BATTERY OF A PHYSICALLY HELPLESS PERSON,
F.S.794.011(4)(a)
"Physically helpless" means unconscious, asleep, or
for any other reason physically unable to communicate
unwillingness to an act. F.S. 794.011(1)(e).
a. In many cases, it would be wise to charge the
above noted crimes in the alternative. The
first statute obviously requires the
additional element of proving that someone
actually surreptitiously slipped the drug to
the victim. If that aspect of the case cannot
be proven, however, then you can rely on the
alternative on the second statute, which
requires only a showing that the victim was
unable to resist the attacker. Even in those
cases where the victim voluntarily ingested
the drug, the "physical helpless" statute
would probably be appropriate. In other
words, the statute does not require the State
to prove who rendered the victim "physically
helpless," but only that the victim was, for
some reason, physically helpless to resist the
defendant's advances.
3. POSSESSION AND DELIVERY OF A CONTROLLED SUBSTANCE,
F.S. 893.13
Note that since Rohypnol is now a Schedule I drug,
delivery of Rohypnol (Flunitrazepam) is a second degree felony.
4. DELIVERY OF A CONTROLLED SUBSTANCE WITHIN A THOUSAND
FEET OF A SCHOOL, F.S. 893.13(c)
5. DELIVERY OF A CONTROLLED SUBSTANCE TO A MINOR, F.S.
6. AGGRAVATED BATTERY, F.S. 784.045(1)(a)(2)
A person commits an aggravated battery who, in
committing the battery, uses a deadly weapon.
A weapon is a "deadly weapon" if it is used or
threatened to be used in a way likely to produce death or great
bodily harm. (Florida jury instructions on Aggravated
Battery.) Obviously, you will need a knowledgeable
toxicologist to testify that the Rohypnol or GHB
detected in the victim, coupled with any other drugs or alcohol
found in the victim, would be capable of causing
"great bodily harm". For example, there is abundant
scientific data which reflects that a sufficiently high dose of
Rohypnol, particularly if mixed with alcohol or other
drugs, can cause a victim to become comatosed, or even
to simply stop breathing and die. In addition, the fact
that the Florida Attorney General recently rescheduled
Rohypnol as a Schedule I drug, due to its potentially
harmful effects, should lend credence to the argument
that Rohypnol (GHB) could be considered a "deadly
weapon" under the proper circumstances. I would attempt to
liken this to a situation where a defendant attempts to
poison a victim with, for example, a dose of arsenic, which
is slipped into the victim's drink.
CONTACTS
For more information on the abuse of Rohypnol or GHB, please refer to the
following sources.
1. Marc Dubin, Esq.
Mr. Dubin maintains, on his own time, a list service on the internet
called FAVNET (Feminists Against Violence Network) at:
"mdubin@ix.netcom.com". The service is free, and used by over 500
subscribers from around the world, including survivors, attorneys, law
enforcement officials, doctors, nurses, law professors, students, rape
crisis and domestic violence coalitions,policy-makers and advisors, and a
variety of experts. Mr. Dubin is an attorney working in the field of
violence against women, and has extensive experience in the field, both as
a prosecutor and from a policy perspective. Please indicate that you
obtained the information from Bob Nichols, along with a brief description
of your background and interests, plus any contact information you can
share in this area.
2. Jim Hall
Up Front Drug information (Miami, Florida)
(305) 757-2566
3. Jim Tolliver, Ph.D.
Department of Justice
Drug & Chemical Evaluation Section
Drug Enforcement Administation
Washington, D.C. 20537
(202) 307-7180
4. Dr. Thomas Carroll
Chief Of Toxicology
Palm Beach County Sheriff's Office
3228 Gun Club Road
West Palm Beach, Florida 33406-3001
(561) 688-4250
I have tried to be as complete as possible, but should you need any
further information or explanation in this area, please do not hesitate to
call me at (954) 831-6933. Thank you.
Very sincerely,
MICHAEL J. SATZ
State Attorney
By:___________________________
ROBERT NICHOLS, ESQ.
Assistant State Attorney
Sexual Battery Unit
201 S.E. 6th Street
Suite 568
Fort Lauderdale, Florida 33301
(954) 831-6933
FAX: (954) 831-6936