Rape, Alcohol, and DNA

     Recently I defended a man, we will call him "Fred," accused of rape.  Fred's female accuser had been at a "party" with about 20 other people, including Fred.  The accuser, MC, said she was drunk, went to lie down in her boyfriend's car, and then Fred came to the car, got on top of her, pulled her pants down and raped her.  MC described the weight of his chest pushing down on her hands and that her hands could not move to get free.  She described the act, the sexual penetration, said that it continued for 10-15 minutes while she continually told my client "no," and that he suddenly stopped and walked away without saying a word.

When a rape kit was done, my client's DNA was found in MC's vagina.

An open and shut case?  No.  The jury, which included a rape victim among its members, unanimously acquitted Fred of the charge of rape.

Now for the rest of the story.

     Let's start with Fred's DNA.  The forensic lab that detected Fred's DNA in a swab of MC's vaginal area found his DNA in saliva, not semen, which was present in that area.

     This was inconsistent with MC's recollection of what happened.  When the rape kit was administered, she denied that Fred had lubricated himself with anything.  According to MC's courtroom testimony, Fred's mouth was no where near where that saliva was found.  So how did his saliva get in her body?

     Fred testified at the trial.  He testified that he went outside during the party, found MC sitting alone in a passenger seat of her boyfriend's car. When he asked if she were okay, she opened the door, grabbed his coat by the lapels, pulled him to her chest and started passionately kissing him.  Five minutes later, she reached for Fred's belt buckle and whispered to him, "Are you going to take care of me now?"  With that turn of events, Fred stopped kissing, got up and walked away immediately without saying anything to her.

     That is the extent of what Fred knew of the encounter.  When last seen, Fred's saliva DNA was in MC's mouth.  The likely explanation, consistent with the DNA evidence and my client's testimony, is that MC put that saliva where it was eventually found out of frustration that she could not have sex when she wanted it, and had sex with herself.

     (Question:  Was that an act of rape?  After all, the prosecutor argued that MC was too drunk to have the legal capacity to consent to have sex with anyone.)

      Despite this logical explanation for the location of the saliva DNA, consistent with Fred's testimony and inconsistent with MC's testimony, the prosecutor had one selling point remaining:  by all appearances, MC actually believed she had been raped!

     I also was of the opinion that MC actually believed she had been raped, although the forensic evidence clearly showed it did not happen.

The explanation lies with the effects of being extremely drunk.

     When a person has a blood alcohol content of .08 percent, the equivalent of drinking 4 beers within about 30 minutes, his or her cognitive abilities begin to be impaired.  At .16 percent BAC, the person is really impaired.  When the BAC rises to approximately .24 percent, memory is affected.  Here's how:  Although the person is aware of what he or she is doing at the time, the part of the brain which remembers what is happening is shut off.  It will remain shut until the blood alcohol content falls below that level.  Once that occurs, the memory turns on again.  This results in "blackout" periods for the intoxicated person.

     However, the logic portion of your brain is not aware that the memory has been shut off, or that it can be shut off.  Therefore, it tries to figure out what happened to the body during the blackout period, and that conclusion substitutes for an actual memory.

     In the case of MC, she was so drunk she repeatedly went outside from the party and relieved herself on the lawn behind a shop on the premises.  Her boyfriend left the party of foot because he was too drunk to drive.  When he left, MC kept drinking, and drinking.

     She eventually got tired and went to her boyfriend's car to take a nap.  She remembered Fred.  She remembered her door opened.  She remembered him on top of her and her hands not moving (his chest would have been on her hands if she had pulled him on top of her).  She remembered Fred on her for a long time and that he did not say anything (because his mouth was busy at the time; they were kissing).  She remembered he got up suddenly and left without any explanation, and without saying a word to her.

Her brain filled in the blanks and convinced her that she had been raped.

       This is not the first time I have defended a man accused of rape by a very very drunk woman.  The previous case involved an accusation by a woman who had been picked up in a bar.  However, the guy who picked up the woman in the bar was not my client, and there were witnesses that the drunk bar lady was dancing sloppy with my client's friend the better part of the night, and she had no DNA in her at all.

     DNA evidence is real.  Drunken memories can be inventions of the mind.  Had there been no DNA evidence in Fred's case, he would have been the victim of a crime that did not happen, and may have been facing life in prison.


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Allen Browning is an attorney in Idaho Falls, Idaho who handles personal injury and criminal defense. He has over 30 years of experience and handled thousands of cases. Allen handles cases from all over Idaho. Call (208) 542-2700 to set up a free consultation if you are facing legal trouble or you have been involved in an accident.

Also, check out browninglaw.net for more information about Allen and Browning Law.

Allen Browning can help with all personal injury claims including motor vehicle accidents, truck accidents, auto accidents, serious and disabling accidents, and wrongful death claims.

Allen Browning is an Idaho Falls attorney who can also help with drunk driving (DUI), traffic violations, Felony, Misdemeanor, Domestic Violence, Drug Crimes, Theft, Juvenile Crimes, battery and assault charges, Violent Crimes, and Probation/Parole Violations. He is one of the most experienced and successful criminal defense attorneys in Idaho.


Allen is able to provide his services if the incident occurs in the following Idaho Areas: American Falls, Arco, Blackfoot, Boise, Burley, Driggs, Idaho Falls, Malad City, Pocatello, Rexburg, Rigby, Salmon, St. Anthony, Twin Falls, Bannock County, Bingham County, Bonneville County, Butte County, Cassia County, Clark County, Fremont County, Jefferson County, Lemhi County, Madison County, Oneida County, Power County, Teton County, and Twin Falls County.

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