Eliminating “Force” and Statutory Rape PDF

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Common law and modern rape laws...

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Class 16 – Eliminating “Force” & Statutory Rape Forcible Rape I.

Inability to Consent – Where the Element of Force is Not Needed a. Sexual intercourse w/ an unconscious person. b. Sexual intercourse w/ someone w/ an intellectual disability (State v. Scherzer). c. Sexual intercourse w/ someone under a certain age (Statutory Rape). d. Sexual intercourse procured through fraud (in the factum or in the inducement (Boro v. Superior Court)).

Fraud in the Factum A victim is deceived about the nature of the act itself. In rape cases, this means a victim is deceived into engaging in sexual intercourse when they believed they were doing something else. This negates consent & amounts to rape.

II.

Fraud in the Inducement A victim is deceived about the reason for engaging in act. In rape case, this means a victim knows they are engaging in sexual intercourse & does so “voluntarily,” but is deceived about the reason for doing so. Does not negate consent & does not amount to rape.

State v. Scherzer a. Charges: Eight counts of 2nd degree conspiracy to commit aggravated sexual assault; two counts of first degree aggravated sexual assault; two counts of first degree aggravated sexual assault; & four counts of third degree aggravated criminal sexual assault. b. Facts: Kevin, Kyle, & Christopher (Ds) were indicted on multiple charges for sexual assault committed against a mentally challenged female victim, M.G. At trial, M.G. testified she performed sexual acts at the urging of Ds. M.G. stated that she was not forced to engage in sexual activity & consented to sexual conduct. Prosecution presented witnesses who testified about M.G.’s personality, mental acuity, & perception by others. According to these witnesses, M.G. had poor self-esteem, was mentally slower than others her age, was frequently ridiculed, & could be easily led by people whom she hoped would like her. Three experts testified that M.G. was a mildly mentally retarded girl who was likely to do what anyone asked her to do & incapable of exercising her right to refuse to engage in sexual contact. Ds were convicted for 1 stdegree aggravated sexual assault by force or coercion, as well as 1 st-degree or attempted aggravated sexual assault upon a mentally defective person. c. Intellectual Disability: i. Teacher testimony – “very easily led,” functioned on “2 nd-grade level” ii. IQ score of 64 iii. Adaptive behavior test – “high risk of victimization” iv. Past acts of victimization & bullying by “friends” v. Guidance counselor: “Told M.G. that she had a right to refuse to allow someone to touch her body, but she could not understand this concept, especially when the person touching her was a friend.” d. Issue: State presented sufficient evidence for reasonable jury to conclude Ds, knowing that M.G. was mentally defective, purposely engaged in sexual penetration while aided or abetted by at least one other person? Is mere persuasion by D sufficient to sustain conviction of aggravated sexual assault by force or coercion? e. Applicable Law: i. N.J.S.A. 2C:14-2a(5)(a) & (b): Actor is guilty of aggravated SA if: the actor is aided or abetted by one or more other person & either of the following circumstances exists: the actor uses physical force or coercion, or the victim is

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g. III.

Boro a.

b. c.

one whom the actor knew or should have known was physically helpless, mentally defective, or mentally incapacitated. ii. State in the Interest of M.T.S.: Definition of physical force in N.J.S.A. is satisfied “if d applied any amount of force against another person in absence of what a reasonable person would believe to be affirmative & freely-given permission to the act of sexual penetration.” There need be no more physical force than that “inherent in the act of sexual penetration.” iii. Olivio: Mentally defective person must be “unable to comprehend the distinctively sexual nature of the conduct, or incapable of understanding or exercising the right to refuse to engage in such conduct with another.” Holding: Viewing the State’s evidence as to Ds’ use of force or coercion in a light most favorable to it, we are convinced that the State failed to present enough evidence to prove to a reasonable jury that force, or coercion were used against M.G. Charging penetration using physical force or coercion must ultimately fail as a manifest denial of justice. The trial judge correctly instructed the jury that being promised a date w/ Paul was not enough to constitute criminal coercion. Under no proper theory of force or coercion could a reasonable jury find those elements of the offense BARD on the admissible facts & applicable law. State presented ample evidence that all 3 Ds were aware of M.G.’s acquiescent nature in sexual & other matters & that they had taken advantage of that aspect of her personality in the past. We vacate defendants’ convictions only on count three. Rule of Law: Mere persuasion by a criminal defendant is not sufficient to sustain a conviction of aggravated SA by force or coercion. v. Superior Court Facts: V received a phone call from a man who called himself “Dr. Stevens.” He claimed to have results of V’s blood test. He informed her that she had contracted a life-threatening disease, & that her only options were to undergo a painful $9k surgery or pay $4,500 to have sexual intercourse w/ an anonymous donor who would be injected w/ a curative serum. V stated she did not have enough money to pay. Dr. said that $1k down payment would suffice & arranged for V to undergo the non-surgical option. Man arranged for victim to meet donor at hotel. Boro (D) arrived & engaged in sexual intercourse w/ her. V testified at trial that only reason she engaged in sexual intercourse was that she thought her life depended on it. D was charged with rape, where sexual intercourse was obtained with one who was unconscious of the nature of the act. Issue: Does rape obtained by fraud in the inducement nullify consent? Applicable Law: i. Fraud in the factum: If the sexual intercourse is procured by deceit or fraud about the nature of the act, then the victim’s consent is considered null & void & D an be convicted of non-forcible rape. ii. Fraud in the inducement: If the victim is induced to engage in the sexual intercourse by a false promise or some other deceit, but knows she is engaging in sexual intercourse, then her consent is considered valid for purposes of rape law & a charge of non-forcible rape cannot be sustained. iii. People v. Minkowski: “treatment” consisted of D first inserting a mental instrument, then substituting an instrument which “felt different”—the victims not realizing that the 2nd instrument was in fact the doctor’s penis. 1. Boro is a different case b/c V knew the outcome was sex.

d. Holding: The relevant statute defines rape as sexual intercourse w/ a victim who is not a spouse, nature of which the victim is unconscious of. D convinced V to have sexual intercourse w/ him in order to save her life. D did not misrepresent what would happen. V was induced to have sexual intercourse w/ another who was not her spouse, & that is precisely what happened. He did fraudulently cause her to engage in sexual

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intercourse by telling her it was for medical purposes. It is clear that D has committed fraud in the inducement. Fraud in the Factum vs Fraud in the Inducement a. Mitchell is not Fiona’s husband, but crawls into her bed at night in the dark & knowingly exploits the fact that Fiona thinks he is her husband to have sex with her i. Today, most states treat this as fraud in the factum (& thus, rape) b/c the attendant circumstance that the partner was not a spouse was a “fundamental aspect of the sexual act itself.” ii. Very few courts recognize this outside of marriage. Statutory Rape Statutory Rape – Jurisdictional Splits a. 17 states (by statute) allow honest & reasonable mistake of fact defense as to age. i. Some allow it only if the complainant is above a certain age. b. 4 states (by court order) require an element of mens rea regarding the complainant’s age. c. 30 jurisdictions with a strict liability felony offense with penalties as severe as 20 years in prison. Garnett v. State a. Facts: Garnett (D) is mentally handicapped (52 i.q.). At the age of twenty, when the events in question occurred, his social development mirrored that of an 11 or 12 y/o. D was introduced to a 10 y/o Frazier. On Feb 28, 1991, Frazier invited D into her bedroom, & they engaged in sexual intercourse. Maryland has a statutory rape law that defines second degree rape as sexual intercourse between a victim under fourteen & one who is four years or more older than the victim. Law also defined 2 nd degree rape as sexual intercourse obtained by force & sexual intercourse between a victim who is mentally handicapped, mentally incapacitated, or physically helpless, & one who knows or should know about the victim’s condition. b. Issue: Whether under present statute, State must prove D knew complaining witness was younger than 14 &, in a related question, whether it was error at trial to exclude evidence that he had been told she was 16 y/o. c. Precedent: i. People v. Hernandez: Absent a legislative directive, a charge of statutory rape was defensible wherein a criminal intent was lacking; it reversed the TC’s refusal to permit D to present evidence of his good faith, reasonable belief that the complaining witness had reached age of consent. d. Holding: Statutes are w/in province of legislature. If legislature chooses to enact statutory rape statute w/o a requirement of mens rea, a court is not to read one in unless the legislature clearly meant for there to be one. Scholars generally disapprove of strict liability for statutory rape since it imposes criminal liability & a heavy punishment on those who are not morally blameworthy. Maryland 2 nd degree rape statute does not expressly set forth mens rea requirement & makes no provision for mistake of fact. It is clear the legislature did not intend to include a mens rea requirement. Legislature could easily have included a mens rea requirement in the statute if it desired. Legislature considered including a mens rea requirement & explicitly rejected it. Any requirement of mens rea must come from the legislature itself & not from a court. Maryland legislature intended for this statute to impose strict liability for statutory rape. e. Rule: Should not read mens rea requirement into statutory law unless legislature clearly intended for one. Statutory Interpretation: Garnett v. State a. Step One: Statutory construction – the section immediately preceding the statutory rape section expressly included a mens rea element, so the legislature knew how to do it & its silence on statutory rape indicates an intention to make it a strict liability

IV.

i. This is an accurate exercise in statutory construction, but less exacting than any other type of strict liability offense. b. Step Two: Consider the legislative intent – the legislature included, considered, & then excluded a mental state component. State v. Yanez a. Facts: Yanez (D – 18 y/o) saw a younger girl named Allison on the street & asked her to go out on a date w/ him. D & Allison had seen each other in passing on prior occasions but had never met. After a date, D & Allison engaged in sexual intercourse. Allison’s mother learned of the encounter & called the police. D admitted to having consensual sex w/ Allison but insisted Allison had told him that she was 16. Allison was 13 years old. D was charged w/ 1st-degree child molestation sexual assault. At trial, D attempted to introduce evidence of his mistaken belief that Allison was 16 based on her maturity, appearance, physical development, & demeanor. TC rejected D’s evidence, holding that mistake of fact was not a defense to the crime of child molestation sexual assault. D was convicted & sentenced to 20 years’ imprisonment, w/ 18 years of the sentence suspended w/ probation. D appealed, arguing that due process required the trial court to allow him to introduce evidence of his reasonable mistaken belief as to Allison’s age. b. Issue: Whether a reasonable mistake of fact concerning a complainant’s age may be asserted as a defense to a charge or statutory rape. c. Holding: The lack of mens rea from the statute was not from negligent omission but from legislative design. Child molestation sexual assault statutes’ silence w/ regard to a mens rea” is designed to subserve the state interest of protecting female children from the severe physical & psychological consequences of engaging in coitus before attaining the age of consent in the statute.” The trial judge argued that this protects the public policy of the state. We agree w/ the trial justice & find no error in his decision. d. Dissent (Flanders): A criminal defendant indicted under §11-37-8.1 should be afforded the opportunity to defend against such charges by showing a reasonable & good-faith mistake concerning the age of his or her consenting sexual partner. I would reverse the trial court’s conviction & remand this case for a new trial that would allow Alex to raise a reasonable-mistake-of-age defense to the charges. e. Rule of Law: First-degree child-molestation sexual assault is a strict-liability offense. A defendant charged w/ this offense may not introduce evidence that he or she was mistaken regarding the child’s age, nor is a defendant entitled to a jury instruction regarding the same....