Section 333.7401a

Michigan Public Health Code Section 7401a (MCL 333.7401a): Delivery of a Controlled Substance or Gamma-Butyrolactone to Commit Criminal Sexual Conduct

1. Definition and Elements of the Crime

To put it colloquially, MCL 333.7401a makes it illegal to give someone a “roofie” or “date rape drug” with the intent to have sex with them. It’s a crime that rarely gets prosecuted, often because it’s difficult—if not impossible—for the victim to ascertain his or her assailant. But if the assailant is caught, the penalty is steep—up to 20 years in prison.

Delivery of a controlled substance or gamma-butyrolactone (GBL) to commit criminal sexual conduct has four elements, all of which the prosecution must prove beyond a reasonable doubt:

1. First, the defendant delivered or caused to be delivered a controlled substance or GBL to the complainant. (“Delivery” means that the defendant intentionally transferred or attempted to transfer the substance to another person, or caused that substance to be delivered to another person.)
2. Second, the defendant knew he or she was delivering a controlled substance or GBL to the complainant or causing the substance to be delivered to him or her
3. Third, the complainant did not consent to have a controlled substance or GBL delivered to him or her.
4. Fourth, when the defendant delivered the substance or caused it to be delivered to the complainant, the defendant intended to commit an act of criminal sexual penetration or sexual contact against the complainant or intended to attempt an act of criminal sexual penetration or contact against the complainant or intended to assault the complainant with the intent to sexually penetrate or have sexual contact with him or her.

GBL is a common date rape drug. But note that MCL 333.7401a applies to all controlled substances. So the crime can be committed with drugs that aren’t traditionally considered date rape drugs.

2. Examples

A man and a woman meet at a bar for a first date. When the woman gets up to use the bathroom, GBL is slipped into her drink. She wakes up alone in a hotel room with her pants off the next morning. She has no memory of most of the night.

At a house party, a man makes several drinks laced with gamma-hydroxybutyrate (GHB), a common date rape drug known as “liquid ecstasy.” He passes the drinks out to several partygoers, including a young woman. Later, the young woman wakes up in the man’s bed naked. She has no memory of most of the night.

3. Related Offenses

Other similar or related offenses include:

1. Possession of a controlled substance, MCL 333.7403
2. Use of a controlled substance, MCL 333.7404

4. Defenses to Delivery of a Controlled Substance or Gamma-Butyrolactone to Commit Criminal Sexual Conduct

Common defenses in delivery of a controlled substance or GBL to commit criminal sexual conduct cases include (1) mistaken identity, (2) consent, and (3) lack of intent.

Take the woman who was slipped GBL at a bar. Suppose her date says that he wasn’t the one who roofied her. In other words, someone else at the bar was the culprit. How could the date prove his innocence? One way would be to subpoena records from the hotel to find out who rented the room. If, say, the bartender paid for the room, this would be strong evidence that he was the one who roofied the woman. Otherwise, perhaps the date has an alibi proving he never went to the hotel.

Now consider the woman at the house party. Suppose the man who mixed the drinks says that the woman knew he added the GHB. GHB is often used voluntarily as a recreational drug. If the man’s story can be corroborated, this would establish a consent defense. Remember, MCL 333.7401a criminalizes delivering controlled substances to a victim without consent. If an alleged victim voluntarily took the drugs, no crime occurred under MCL 333.7401a.

5. Penalties

Delivery of a controlled substance or gamma-butyrolactone to commit criminal sexual conduct is a felony punishable by up to 20 years in prison.

6. Criminal Defense for Delivery of a Controlled Substance or Gamma-Butyrolactone to Commit Criminal Sexual Conduct

Perpetrators who use roofies to commit sexual assault are universally reviled. If you’re under investigation for or have been charged with a crime under MCL 333.7401a, you need to hire a criminal defense attorney as soon as possible. Grabel & Associates has been in business for more than 20 years and has handled hundreds of drug cases. Our highly respected attorneys know what it takes to obtain the best result in your case.

For more information about delivery of a controlled substance or gamma-butyrolactone to commit criminal sexual conduct and to talk about your case, contact Grabel & Associates at (800) 342-7896.