There is a widespread tendency to blame the victim for sexual assault related to alcohol or substance abuse, whereas, on the contrary, the judgment of responsibility should concern only those who perpetrated it and the social context that has encouraged (or not prevented) its occurrence. Still, this mentality infects even the classrooms of justice, where unacceptable cases of “secondary victimization” continue to occur, which have exposed our country to harsh censorship by the European Court of Human Rights.
The consumption of alcohol and drugs has taken on a decisive role in the daily dimension of people, especially the youngest, as an element of “socially accepted” conviviality. There is, however, an increasingly close relationship between the use/abuse of drugs and alcohol and the increase in violence that has become the subject of much research over the last decade. The phenomenon has been further intensified during the recent pandemic, also due to the increase of the c.d. “alcohol marketing”, which has been combined with increasing ease in the availability and consumption of drugs. This has increased the acceptability of their consumption, with the onset at an early age of abuse behaviors that, in most cases, result in acts of violence, especially sexual.
Where awareness-raising and cultural growth (as primary means of prevention) are not enough, the criminal law is called upon to intervene, which does not always prove to be suitable to meet the needs of protection of victims. Violence, in fact, is becoming increasingly difficult to clearly frame in abstract cases that are sometimes obsolete or are sometimes distorted through certain moralizing lenses of our judicial system.
The connection between substance use and the increase in violent behaviour
A recent study by the American Addiction Centers highlighted how drug and alcohol use is present in cases of domestic abuse in a percentage ranging from 40% to 60%; every year about 300,000 victims report attacks by people under the influence of alcohol and, In 2016 alone, alcohol caused around 90,000 deaths as a result of domestic violence around the world. In addition, in the United States alcohol plays a key role in 32% of murder cases.
Alcohol consumption, in particular, is related to the increase in violent behavior, much more than other substances. In fact, although intoxication by alcohol – whether in the aggressor or the victim, or both – is not necessarily the sole and exclusive cause of violence, it can significantly increase the risk of this happening. Research has found among the common causes an increase in disinhibition (alcohol encourages behaviors that, normally, would be repressed, acting on the areas of the brain that control impulses) or the c.d. “alcohol myopia” (or the narrowing of the individual visual focus with consequent misperception of reality). In addition, alcoholic substances affect cognitive processes, affecting the ability to control rabies, to react appropriately to situations, as well as predict the consequences of their behavior (c.d. “here-and-now focus”).
World Health Organization (WHO) latest global report highlighted, in 2018, how alcohol was consumed by more than half of the population in three regions (Americas, Europe and the Western Pacific); worldwide, more than a quarter (26.5%) of all 15-19 years old were “current drinkers” (about 155 million adolescents)with higher prevalence rates among 15-19 year olds in the European region (43.8%), followed by the Americas (38.2%) and the Western Pacific region (37.9%). In all regions of the WHO, women “drinkers today” were fewer than men. Moreover, a quarter (25.5%) of all alcohol consumed in the world was unregistered, that is, not considered in the official national statistics on taxation or sales, as it is usually produced, distributed and sold outside the official channels. All over the world, 44.8% of the total alcohol recorded was consumed in the form of spirits, the second most consumed drink was beer (34.3%) followed by wine (11.7%).
While previous studies focused mainly on the role of alcohol in street violence (predominantly male-on-male), in recent years there has been a greater focus on episodes of violence in the family and in intimate relationships, including sexual assault. Studies on the involvement of alcohol in the perpetration of sexual assaults by young males found a strong connection: a survey in 10 countries of Central and Southern Europe found that both sexual aggression and sexual victimization are associated with drinking in combination with sex, with higher rates in males than women.
The situation has changed significantly following the COVID-19 pandemic, where there has been a significant increase in the spread and use of alcohol, especially in the younger population, because of the different strategies used by the digital market. According to a 2021 WHO report, digital platforms have quickly become a powerful marketing tool for alcoholic beverages, in line with the widespread shift from traditional to digital marketing contexts. Through a constant and systematic data collection, in fact, digital platforms collect information about individuals that are used to target individual users and influence consumer preferences, attitudes and behaviors. The digital ecosystem exposes people to alcohol advertising, identifies people most likely to buy and consume alcohol – often those most at risk of developing alcohol use disorders – and turns users into vulnerable targets. Research indicates that those who consume more alcohol may be more susceptible to such strategies; among these the most vulnerable are children and young people, whose early exposure to alcohol marketing increases the chances of reporting permanent harm.
In any case, alcohol is not the only substance of abuse linked to the increase in violent behaviour: as noted by the WHO, it is often associated with the consumption of narcotic and psychotropic substances. In particular, alcohol is often consumed before, together with or after the use of other psychoactive substances, and in addition, the comorbidity of alcohol and tobacco dependence is narrow and well documented; there is, then, a frequent association of alcohol consumption with opioid use, benzodiazepines and with cannabis intake.
Substance abuse and sexual assault
Studies have shown a number of links between substance use and the risk of sexual assault. To the increase of vulnerability that derives, in fact, is added in most cases a condition of c.d. incapacitation: the effect of the substances can lower the inhibitions and the level of attention, putting at risk the ability to recognize dangerous situations and make informed decisions; in some cases, attackers may use drugs or alcohol to make victims unable to resist or protect themselves from sexual assault. This practice is often referred to as “drug-assisted rape” or “induced rape”. The use of substances can also lead people to participate in high-risk situations or to frequent dangerous environments, increasing the likelihood of becoming victims of sexual violence.
Research has shown that in at least half of all sexual assaults between acquaintances there has been alcohol consumption by the author, the victim or, more commonly, both.. Alcohol consumption can increase the risk of sexual violence through both physiological and learned effects, or expectation. On the one hand, in fact, the c.d. “alcohol myopia” can lead the victim to focus attention on prevailing social signals (fun, greater disinhibition in social relationships etc.) rather than on those of ambiguous and less evident risk: in the absence of the alarm that would normally arise from recognizing the risk, a woman may not feel the anxiety or fear that would motivate her to move away from a dangerous situation. On the other hand, expectations about the effects of alcohol could indirectly increase the risk of sexual violence by motivating a woman to drink excessively to experience the beneficial effects commonly associated with drinking (especially in convivial settings) or increasing her belief that alcohol makes her “socially” more acceptable.
Alcohol can also play a key role in the consequences of sexual assault, whether or not it occurred after drinking. Drinking to cope with trauma can lead to alcoholism and increase the risk of being victimised again. One of the most frequent problems is self-discovery: if a woman feels somehow responsible for sexual assault because she had taken alcohol, she may be less willing to denounce the violence, thus making it much lower the probability of receiving the necessary help to deal with all its consequences. This could also cause phenomena such as dissociation or a strong feeling of powerlessness, which could make you more vulnerable in the event of new aggression. Finally, as child sexual abuse can lead to alcoholism problems as an adult, women who have suffered this trauma have a higher risk of being victimised again and suffering from PTSD and the negative consequences of alcohol dependence.
L’alcol, infine, può aumentare l’effetto di alcune sostanze stupefacenti usate dagli aggressori per facilitare una violenza sessuale. The most common are the Rohypnol, the GHB, the GBL and ketamine, which all have sedative effects and impaired memory of the victim. These medications are typically odorless, colorless, and tasteless when placed in a drink, with the exception of GBL, a bitter-tasting substance that can easily be masked by strong-tasting beverages. Within 30 minutes of ingestion, the person may have difficulty speaking or moving and may faint, becoming vulnerable to assault. Moreover, because of the effects of the drug, the victim may have little or no memory of the events, and for this reason many victims do not report or report to others what happened to him.
Sexual assaults and specific context: university and military environments
The analysis of the relationship between sexual assaults and alcohol or drug use has focused on specific contexts, where certain environmental or social factors could play a decisive role.
One of these is represented by the university world, where at least 50% of sexual assaults are linked to alcohol use. A research conducted in 2021 by the UK Healthy Universities Network, in collaboration with UK universities and the Office for Students found that alcohol and drug use is relatively common among higher education students. Drinking alcohol and taking drugs is part of the experience of freshmen, many of whom live away from home for the first time.
A quarter of the students interviewed by the Higher Education Policy Institute (HEPI) said they had taken illegal drugs in the previous year. 76% of respondents in a 2018 National Union of Students (NUS) survey on alcohol consumption said that students are expected to drink to get drunk. In addition, “Everyone’s Invited“, a website where victims of sexual violence can share their stories anonymously, contains frequent mentions and specific stories of alcohol and drugs in user-shared testimonials.
The study also reports that full-time students are more likely to suffer sexual assault than all other occupational groups and, from surveys conducted by the association Brook, it emerged that at least 50% of women reported having suffered unwanted behaviors (cat calling, chases, sexual conversations and explicit messages, inappropriate physical contacts or non-consensual sexual intercourse) and 62% of students or recent graduates have suffered sexual violence. However, only 5% of women who have had inappropriate physical contact and 3% of those who have received unwanted explicit sexual messages have reported it. In addition, 53% of respondents confirmed that they had suffered unwanted sexual behavior from other students, and 30% of the incidents occurred on a campus. Finally, women are much more likely to become victims of such behaviour than men (49% against 3%).
As for the relationship between alcohol and consent, only 52% of the students interviewed are aware that it is not possible to give consent when you are drunk. 90% of students feel confident in saying no to unwanted sexual advances, however, 52% of those who are not reported fearing that their refusal could lead to violence.
Recently, similar considerations have also arisen in the military context, especially in the USA. And in fact, although no specific research has been conducted in scientific literature that has examined the correlation between the use of alcohol (both by the aggressor and the victim) and sexual assaults involving US military personnel or veterans, the constant trend of military alcohol use/abuse has prompted institutions to question the issue, starting from some data already present.
A study from 2019 carried out on the staff of the US Department of Defense (DoD) showed that alcohol was present in 62% of cases of sexual assault involving women belonging to the DoD and in 49% of cases concerning men. The target subjects of the study included active service members of the Army, Navy, Marine Corps, Air Force and Coast Guard who were below a certain rank and had been on active duty for at least five months. The answers provided showed an increase, compared to a previous survey in 2016, of all behaviors considered “sexual harassment” (sexually explicit speeches, jokes and messages, sexually significant and unwanted gestures and physical contacts, unwanted relationships), often combined with discriminatory behaviour (on a sexual or gender basis).
Assessment of liability and victim’s guilt
The widespread blaming of the victim who was sexually assaulted while drunk or under the influence of drugs (regardless of whether or not this condition is voluntary) is still a hard-to-overcome bias in public opinion and, above all, in the specialized operators called to intervene. This tendency can first of all influence the way in which law enforcement or health services treat the victim, hindering his willingness to report the crime suffered, as well as seeking medical help or specific psychological advice. Similarly, the judicial process following a complaint could represent a new form of violence for the victim, which most often risks becoming the subject of judgment (and, often, of blame) in place of the true perpetrator of the violent and reprehensible conduct.
The reading of some pronouncements of recent years confirms the existence of this tendency which, like a red thread, subtly runs through the thought of part of the jurisprudence. And in fact, although the judges of legitimacy have intervened several times to affirm well-established principles on the subject of violence against women (especially that of a sexual type), it is still possible to find real stereotypes, on the basis of which some judges of merit (but not only) make their own assessments. This is despite the harsh repression of the European Court of Human Rights which, in its judgment 5671/16, condemned Italy for violation of Article 8 of the ECHR – in a sentence of acquittal against seven men accused of group sexual violence – of “a blaming and moralizing language that discourages the trust of victims in the judicial system” and for the “secondary victimization to which it exposes them“.
The issue is not only about the configurability or otherwise of sexual violence crimes (art. 609 bis c.p.) and group sexual assault (art. 609 octies c.p.) but, above all, in relation to the role that the use of alcoholic or narcotic substances (in particular in the victim) assumes on the valid provision of consent, as well as on the applicability of any aggravating circumstances.
With regard to consensus, despite the fact that there are still many conflicting substantive rulings, is settled in law that consent to the sexual act should be verified at the time of intercourse, regardless of any provocative behavior earlier and must remain for the duration of the same, so the eventual dissent not only integrates the crime of sexual violence (single or group) but precludes the recognition of the attenuating of the lesser gravity.
However, there are still cases in which this peaceful assumption presents margins of uncertainty. In a very recent pronunciationthe Court of Cassation annulled a judgment of the Court of Appeal of Turin (with which the accused was acquitted for lack of psychological element regarding multiple episodes of aggravated sexual violence and convicted only for the last fact committed in order of time)since the latter would have deduced the man’s guilt according to his guilty state of drunkenness. According to the stoats, in fact, “the alleged drunkenness is not relevant as a decisive element of guilt in the verification of consent and its permanence during the relationship“.
Different is the assessment of the state of alteration of the victim when it is discussed the possible applicability of the aggravating circumstance provided by art. 609 ter, n. 2, c.p., that is, in the case in which the violence is committed “with the use of alcoholic, narcotic or narcotic substances or other tools or substances seriously detrimental to the health of the injured person“. On this point, several pronouncements have evaluated negatively the “voluntary” intake of alcohol by the victim for the purpose of the applicability of the aggravating circumstance. Although, in fact, the judges of legitimacy agree that integrates the crime of sexual violence with abuse of the conditions of mental or physical inferiority the conduct of those who induce the offended person to undergo sexual acts in a state of psychic infirmity determined from the intake of alcoholic beverages “being the aggression to the other’s sexual sphere is characterized by insidious and devious modalities, even if the offended party has voluntarily taken alcohol and drugs, detecting only his condition of psychic or physical inferiority following the intake of the said substances“this state of affairs is of varying importance for the purpose of increasing the penalty: according to the Court, the voluntary intake of alcohol by the victim excludes the existence of the aggravating circumstance, since the rule provides for the use of arms or alcohol, narcotic or narcotic drugs necessarily instrumental to sexual violence; therefore, “must be the active subject of the crime that uses alcohol for violence, administering it to the victim; instead voluntary use, yes, as seen, on the evaluation of the valid consent, but not also on the subsistence of the aggravating circumstance“.
Similar principles are reiterated in a 2020 pronouncement where, with articulated exegesis “literal and systematic“, the configurability of the aggravating factor is excluded on the basis of an alleged will of the legislator: “the reference to the “facts (…) committed (…) by the use” and the juxtaposition, alternatively, of alcoholic or narcotic substances to arms are elements from which it is reasonably inferable as, for the legislator, for the purposes of the aggravating circumstance in question, the use of such substances is seen as a means of forcing or inducing the victim to perform or undergo sexual acts and, therefore, gives rise to a different, and more serious, situation than that in which the agent “limits himself” to take advantage of an inferiority situation of the offended person”.
These assessments, however, do not take into account the specific context in which this “voluntary recruitment” took place. In the case of 2018, in fact, the two defendants had taken the victim to dinner and, after having induced her to drink an excessive amount of wine, they had taken her to the bedroom to undergo repeated sexual violence. Similarly, the 2020 judgment concerns a victim already suffering from a “significant psychological and cognitive deficit“ who, before being repeatedly abused, had voluntarily “smoked a joint“.
Well, to what extent we can say with absolute certainty that the voluntariness in taking alcoholic or narcotic substances (a joint) is such as to configure a situation of which the aggressor has only “limited himself to taking advantage” and is not part of the agent’s voluntary conduct (in the form of induction)? Moreover, it is precisely the numerous studies mentioned above that show that alcohol intake, especially in young people, is often justified in the sense of inadequacy, in the desire to overcome personal or social barriers that limit interpersonal relationships and in the desire to make them simpler through greater ease. Not to mention the cases of previous traumatic or negative experiences that could have given the victim problems of addiction with alcohol or drugs. The awareness in the head of the aggressor – even if matured at the time of the event, for example because you realize that the person in front of you is strongly inclined to drink and “let go” – often plays a fundamental role in its decision to commit violence (with the expectation of greater freedom of action), when it does not even become a pre-ordered instrument for the consummation of criminal activity.
The conscious intake of drugs should therefore take on a different importance in the evaluation of the fact, more similar to a “handicapped defense” than to a voluntary contribution to the realization of the event (the adage “she sought it”). The focus of the analysis, in fact, should be the conduct of the eventual rapist and in particular the actual consciousness and representation of the conditions of reduced (or absent) consent of the victim.
The penal system, in fact, has found itself delayed in effectively coping with the complexity of the phenomenon, which has evolved rapidly in recent years, collecting a changed social need for regulation. At the same time, the unsatisfactory ageing of certain rules has not been mitigated by court arrests, indeed censored for the tone “blaming and moralizing that discourages the trust of victims in the judicial system“.
In the light of the change taking place, a systematic adaptation, which is not a radical transformation, would be desirable, but that accompanies the new vulnerabilities and the relative requests for protection with sartorial precision. In this sense, it would be possible to intervene in the wake of the anti-violence reforms that have animated the legislative activity of recent years. However, it will have to follow an interpretation of the new institutions that is consistent with these changes and that does not make the attempts at regulation a dead letter, nor leave room again for inertia from cultural backwardness already stigmatized by the European Court of Human Rights.
 Cfr. Global status report on alcohol and health, WHO, 2018.
 Cfr. note 1.
 Cfr. note 1.
 “Digital marketing of alcoholic beverages, what has changed?”, WHO, December 2021.
 Cfr. note 1.
 “Under the influence? Considering the role of alcohol and sexual assault in social contexts”, ACSSA – Australian Center for the Studies on Sexual Assault, n. 18/2014
 Gamma hydroxybutyrate.
 Gamma-butyrolactone, illegal precursor to GHB.
 Rapid Review of Alcohol-Related Sexual Assault/ Harassment in the Military – Phsycological Health Center of Excellence, February 2020.
 In the study were considered on a statistical basis all members of the dod, quantified in 1,285,290 men (divided between the Army, Navy, Marine Corps and Air Force), plus 41,204 of the Coast Guard, both civilian and military, divided on the basis of gender, the salary received, the role played and the strength of belonging.
 EDU Court, section I, 27/05/2021, appeal n. 5671/16, J.L. c. Italia https://hudoc.echr.coe.int/eng#%7B%22itemid%22:%5B%22001-210299%22%5D%7D
 Cfr. Court of Appeal of Turin, judgment no. 2277 del 31.03.2022 (dept. on 20.04.2022), Sez. IV.
 Cfr. lastly, Cass. Sez. III, n. 32447 of 26.07.2023.
 Sez. 3, n. 7873 of 19/01/2022, D., Rv. 282834-01.
 Sez. 3, n. 15010 of 11/12/2018, F., Rv. 275393-01.
 Sez. 3, n. 16440 of 22/01/2020, S., Rv. 279386-01.
 Cass. Sez. III, 26.07.2023 n. 32447.
 Cass. Sez. III, 16.07.2018 n. 32462.
 Cass. n. 32462/2018 cit.
 Cass. Sez. III, 24.03.2020 n. 10596.
 Cass. n. 10596/2020 cit.
 Cfr. Cass. 10956/2020 cit.
 Cfr. Judgment CEDU 5671/16 cit.