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A Dangerous Defense: "Blackout" in Alcohol Facilitated, Non-Stranger Sexual Assault Cases Webinar
Tuesday, November 7th, 2017
12:30 PM PT/1:30 PM MT/2:30 PM CT/3:30 PM ET

This webinar is approximately 90 minutes long.

Course Description

Few cases are more challenging for investigators and prosecutors than non-stranger sexual assaults that involve alcohol use, especially voluntary drinking on the part of the victim prior to the assault. Among other challenges, a recent defense that has been raised successfully nationwide is the possibility of the victim having "blacked out," and consenting to sexual activity, but not remembering doing so.

The so-called "blackout" defense is particularly problematic because it can be raised in circumstances where the victim's memory and credibility are already compromised. Defense attorneys also find the defense attractive because it doesn't involve challenging the victim's credibility as a truth-teller, but rather as a reporter; the argument goes that the victim is not a liar necessarily, but simply mistaken because of the inability to remember consenting to sex.

While there is no "silver bullet" answer to this defense, there are realities about the condition that should be thoroughly understood by responders at every level. For instance, while blacking out is a recognized neurological phenomenon, it is not as common as may be perceived, and also usually seen in the context of obvious impairment. It's also important not to confuse blacking out with passing out, which is a loss of consciousness. Offenders may seek to claim "blackout" when a victim regains consciousness and realizes he or she has been sexually assaulted when, in fact, the assault occurred while the victim was in an unconscious or nearly unconscious state.

This presentation will go over the basic physical facts about what "blacking out" is, and also contrast them with passing out. It will then cover how investigators and prosecutors can distinguish the two, and how evidence can be gathered from victims, witnesses and other sources to demonstrate whether one or the other was truly at work. Strategies will be discussed for addressing the defense both during the investigation and at trial so that the chances for justice can be maximized.


As a result of this session, participants will be better able to:

  • Understand the effects of alcohol on memory and behavior, particularly the physical, neurological phenomenon of "blackout" and distinguish it from a loss of consciousness.
  • Combat myths that often surround non-stranger sexual assault cases involving the voluntary use of alcohol by victims and suspects.
  • Develop strategies for evidence gathering and recall from the victim, witnesses, suspect and other sources to combat an erroneous blackout defense when confronted with it.



Roger Canaff pictureRoger A. Canaff
JD, Past President, Honorary Board, EVAWI, Legal Expert, Child Protection & Special Victims Advocate, Author, Public Speaker, New York, NY

Roger Canaff was born in New York City and raised in Northern Virginia. He attended the University of North Carolina at Chapel Hill School of Law. After a brief period in private practice, he took a job with the Alexandria, Virginia Office of the Commonwealth's Attorney in 1997. During his time there he prosecuted many different types of crimes, with a specialty in child abuse, child sexual assault, and juvenile crime. In 2003 he joined the National Center for the Prosecution of Child Abuse at the American Prosecutors Research Institute, as a Senior Attorney. In 2005 he returned to active prosecution in Bronx County, New York in the Child Abuse and Sex Unit prosecuting both adult and child sexual assault crimes. In June 2007, he was hired by the New York State Office of the Attorney General as the Deputy Chief of the newly formed Sex Offender Management Unit. After serving for two years in this position, he was hired by the United States Army in June of 2009 as a Highly Qualified Expert with the Trial Counsel Assistance Program, US Army Legal Services Agency. As an Army civilian, he trained and consulted with military prosecutors specializing in Special Victims issues worldwide. He left federal service in February, 2012, re-joining the National District Attorney's Association as a Fellow in October of 2012 within the National Center for Prosecution of Child Abuse where he served until early 2015.

An experienced child, adolescent, adult, and disabled victims legal expert, he has lectured to prosecutors, law enforcement, medical experts, advocates and other allied professionals as well as the public. He continues to train and consult internationally and lives in New York City.

Mike Milnor PictureMike Milnor
Chief of Police, Altavista, Virginia

Mike has worked in law enforcement for 31 years and is currently the Chief of Police for Altavista, Virginia. Over the years he has worked in various positions which include Interim Sheriff, Director of Public Safety, Coordinator of an FBI/Virginia State Police multi-jurisdictional task force, Senior Supervisory Investigator, uniformed Deputy Sheriff and Polygraph Examiner.

In addition to being involved in thousands of investigations, Mike has an extensive amount of teaching experience in criminal justice with an emphasis in the areas of sexual assault, child abuse, elder abuse and domestic violence. He has been a Professor of Criminal Justice at Liberty University, as well as lecturing across Virginia and the United States. Mike also contributed to the development of Virginia's Model Law Enforcement Policy in Sexual Assault Investigation. In 2016, Mike was selected to the core faculty of the National Center for Campus Public Safety where he instructs at colleges and universities in the areas of sexual assault investigation, Title IX and Cleary Act compliance, and campus violence.

This project is supported by Grant No. 2015-TA-AX-K015 awarded by the Office on Violence Against Women, U.S. Department of Justice. The opinions, findings, conclusions, and recommendations expressed in this publication/program are those of the authors and do not necessarily reflect the views of the Department of Justice, Office on Violence Against Women.
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