Does my friend have grounds to press charges for attempted rape?

My friend may or may not have been raped. She does not remember because she was intoxicated. She did not consent and to my understanding if you are intoxicated you can’t consent anyways. She was at a club and wanting to go home but got separated from her friends. She did not understand the situation and a guy deceived her into getting in a cab and he took her back to his place. At the time she thought she was getting in a cab to go home to her friend’s apartment. The police were called by her friends that were with her that night when they could not find her. They were able to figure out the address of this guy. The police arrived and stopped anything from advancing. She cannot remember if anything had happened yet, however it was clearly going to happen as her underwear was off. Does she have grounds to press charges for at least attempted rape?

Asked on September 17, 2016 under Criminal Law, Alaska

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 4 years ago | Contributor

She has enough to ask the authorities to bring or file charges, because the threshhold for bringing charges is only that there must be a "reasonable cause" to believe that a crime was committed, and her inability then to consent, intoxication, state of undress, and being in his home provide a reasonble basis to think he was in the process of or was about to commit sexual assault.
However, she needs to be aware that there may well not be enough to convict, and on that basis, if the authorities are convinced they would lose the case, they may decline to bring charges that will ultimately go nowhere. You say that her underwear was off but nothing had happened yet; that implies there is no physical or forensic evidence of assault. To convict, you need proof "beyond a reasonable doubt" of a crime--more evidence than is needed for bringing the charges initially. If she cannot remember anything, can she prove that she did not take her underwear off herself? Can she prove the person she was with did or was preparing to do anything? With no physical evidence and no witnesses (if she can't remember), then unless he admits to something, conviction is unlikely; and if conviction is unlikely, the authorities could believe that bringing charges would be pointless.


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