It is necessary to establish how the substances affected the person at the time of the events and what the person who engaged in the sexual contact knew or took advantage of.
Choosing to drink does not amount to consenting to sexual intercourse. Furthermore, a person's condition after consuming alcohol or drugs may prevent them from making a free decision.
What should be investigated when substances have been consumed?
The analysis must reconstruct the person's condition during the incident. The substance involved, the sequence of events, the behaviour observed and the conclusions of the professionals who examined the person are all important.
The ability to communicate, orientation, degree of drowsiness and need for assistance when moving may be relevant. None of these factors should be interpreted in isolation. Being able to walk or say a few words does not, in itself, establish that the person had the capacity to consent to any sexual act.
Likewise, a positive toxicology result does not automatically prove that the person's ability to exercise their will was overridden. Any conclusion must relate the results to the time of the incident under investigation and to the other available information.
Loss of consciousness and overridden will
Article 178.2 of the Spanish Criminal Code covers sexual acts committed against persons who are unconscious or otherwise deprived of awareness, as well as acts committed when the victim's will has been overridden for any reason. The distinction is important because an overridden will also appears in the more severely punished forms of the offence under Articles 178.3 and 179.2. Spanish Criminal Code, Articles 178 and 179.
There is room for legal debate when distinguishing between these two categories. For this reason, the judgment must specify which capacity was affected and to what extent, rather than treating the expressions as interchangeable labels. Any impairment, however relevant, requires an explanation to justify the legal classification applied.
A case involving deep sleep requires examining whether the person could understand and decide about the contact, as well as the circumstances that allowed the perpetrator to be aware of that condition. An act cannot be considered consensual merely because intimacy had occurred before the person fell asleep.
The difference between drug-facilitated sexual assault and taking advantage of the victim's condition
Not all cases involving substances arise from the same mechanism. An investigation may concern someone administering substances to facilitate an assault or taking advantage of a condition resulting from voluntary consumption or another cause.
Article 180.1.7 establishes a specific aggravating circumstance when the offender overrides the victim's will by administering medication, drugs or other suitable substances. A positive toxicology result is not, by itself, sufficient to attribute the administration of those substances or its purpose to a particular person. Spanish Criminal Code, Article 180.
It is necessary to investigate who administered the substance and how that action relates to the events. Voluntary consumption does not rule out sexual assault involving exploitation of the resulting condition, although it may affect the legal classification.
What can a toxicology test prove?
The results depend on the type of sample, the time elapsed and the techniques used. The instructions issued by Spain's National Institute of Toxicology and Forensic Sciences warn that a negative result does not necessarily exclude the administration of a substance, as it may no longer be detectable. A positive result also requires interpretation alongside the clinical information. Instructions of the INTCF concerning suspected intoxication.
There is no single detection period applicable to all substances and samples. Early sample collection may improve the chances of detection. If medical attention takes place later, healthcare and forensic professionals must assess which procedures may still be useful.
The identification and preservation of samples, the chain of custody and the scope of the expert interpretation must also be examined.
Collection of evidence even when no complaint has yet been filed
Article 48.2 of Organic Law 10/2022 allows biological samples and other evidence to be collected without making that procedure conditional upon filing a criminal complaint. It requires the person's informed consent and provides for the preservation and transfer of the evidence to the Institute of Legal Medicine, with appropriate chain-of-custody safeguards. Organic Law 10/2022, Article 48.
Medical care should not be delayed because a person has not yet decided whether to report the incident. Healthcare assistance may document findings that later become relevant, while also addressing the person's health needs.
Vulnerability and disability require an individual assessment
A condition caused by substances must be distinguished from other situations of vulnerability or possible abuse of a person's mental condition. A diagnosis or an officially recognised disability percentage does not, by itself, determine a person's capacity to consent.
The Spanish Public Prosecutor's Office states that the person's sexual self-determination and any possible abusive exploitation by another person must be examined. The assessment must consider the person's understanding of the act and their ability to accept or reject it in their particular circumstances. Circular 1/2023, Section 5.
It is also necessary to avoid using the same circumstance twice, on the same grounds, to increase criminal liability. Article 180 contains a specific rule for resolving overlaps with the forms of the offence established in Articles 178 and 179.
Frequently asked questions about alcohol and sexual assault
Does a negative toxicology test rule out a criminal offence?
No. It is necessary to know what was tested, when the sample was collected and what limitations apply to the result. Furthermore, the absence of consent may be established through other evidence.
Does voluntary substance consumption prevent someone from reporting sexual assault?
No. Choosing to consume a substance does not amount to consenting to sexual intercourse, nor does it exclude the possibility that another person may exploit a resulting state of incapacity.
If both people had been drinking, does criminal liability disappear?
There is no automatic rule to that effect. Each person's condition, the conduct involved and the requirements of any alleged defence or mitigating circumstance must be individually proven and assessed.
Legal advice in proceedings involving toxicological evidence
Consult a criminal lawyer to review the toxicological evidence. Understanding its scope makes it possible to request clarification and challenge the legal classification on the basis of specific facts.
If you are involved in criminal proceedings in Spain concerning sexual assault where alcohol or drug consumption is relevant, contact Brandi Abogados. Our criminal defence lawyers can confidentially examine the case file, review toxicology reports and assess the available evidence to prepare the most appropriate legal strategy.
