Rape by Deception / Mistake?
The Daily Telegraph reports on a case that would usually just be a strange hypo in criminal law class. When reading the case, ask yourself what the result would be or should be either (1) if the defendant was telling the truth when he says that he was just mistaken, (2) if the defendant was lying, and actually knew whose room he was going into, and (3) if the defendant was mistaken at first, but at some point realized his error but for one or another reason didn't stop.
I've always wondered whether things like this happened. I guess I know now.
My exact intuition. She's just as "culpable" as him.
If a jury would credit the "wrong woman's" testimony that she was capable of making what seems to be an unlikely mistake, how can there not be reasonable doubt that he made the same mistake. (Of course, I'm assuming that the reasonable doubt standard applies.)
I really don't understand how you can make a mistake like that.
Reverse the sexes in the incident. Is the male still the one being prosecuted? If they were the same sex?
Common law rape is defined such that it is impossible to commit if you don't have a penis.
He might not be convicted. But he's for sure not innocent.
The article actually isn't clear as to whether the woman was actually asleep when sex was initiated; it only says she was asleep when he entered the room. Some statutes (e.g. California's) call it rape the moment you initiate sex with an unconscious person who is not your spouse. One might surmise that everything is fine so long as the person wakes up and retroactively consents; but there is a good public policy argument to be made that we should discourage the initiation of sex under a "wait-and-see" approach to consent.
Assume, for the sake of argument, that the woman was awake when sex was initiated. It's clear that actual consent was given, so there's no issue as to whether the man reasonably believed there was consent, which might be an issue under certain statutes. The only question is whether the consent was wrongfully procured.
California's statute again provides a helpful provision, although it is not literally applicable by its terms:
Where a person submits under the belief that the person committing the act is the victim's spouse, and this belief is induced by any artifice, pretense, or concealment practiced by the accused, with intent to induce the belief.
I think it's very clear, regardless of the statutory terms, that if there was an honest mistake by both parties then no rape occurred. Actual consent was given; the fact that it was mistakenly given is not a reason to impose criminal liability. There certainly was no intent to have intercourse with an unconsenting woman.
If, instead, he didn't make a mistake and knew full well whose room it was, you have a more difficult case. If he knows she believes him to be her boyfriend, or if he intends to induce that belief, then he would be guilty under a statutory scheme similar to California's. However, I don't think either of these suppositions necessarily follow from the act. It could just as well be that, when he climbs into bed and she indicates her willingness to have sex, he honestly believed, "Awesome, she must have thought I was hot." There would be no criminal liability in that case.
If, hypothetically, there was a mistake at first but he realized it along the way, I think the analysis would be the same as the prior case unless he immediately terminated the act. It's not a crime to mistakenly walk off with someone's umbrella; but if you realize after walking down the hall with it that it isn't yours, I don't believe you get to simply keep it. The modern view is certainly that consent can be withdrawn once given; and once he realizes that her consent was the result of a mistake, he is engaging in a wrongful concealment if he continues with the sexual act anyway.
Michelle Anderson blogged about how evidence that the guy was drunk or that the girl was drunk seems to cut against the woman in either case. Essentially, if the girl is drunk, she gets blamed. And if the guy is drunk it tends to mitigate his behavior.
I'm not suggesting that's necessarily applicable in the case of an honest mistake. But this doesn't quite sound like a completely honest mistake. It does sound like this guy will use both his drunkeness and her drunkeness as a defense. After he's already been told no.
And isn't mistake of fact a defense in a rape case (that is, if you believe that she consented, you did not commit an offense)?
And if there was no INTENT to deceive, and she consented to penetration, where is the FORCE?
However, the flatmate didn't bring a drunk man to bed (she left her b/f on the sofa). I think the timing will come into play here. About 5 minutes is estimated to elapse. The man could be played out in that 5 minutes, but that seems right for the Prosecutions case that he came into the room, entered the bed, began intercourse with the victim asleep, the victim awoke, initially responded with consent, and then (going on a hypothesis) likely made some inquiry, got a inappropriate response, turned on a light, and withdrew consent. As Steve points out, did she consent before intercourse or was she asleep? If she was awake, then did he stop when she withdrew consent?
So now "No" means "no and don't ask again"? I'm glad I'm married.
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I keep coming back to that episode of Veronica Mars...
Contrary to Huh and Concurring Opinions, I recall explicit statements in law that she cannot give consent while imparied and he cannot use impairment as a defense, which led to the opposite conclusion in cases where both were drunk. I believe it was Canadian law in the 1990s, so perhaps it fell outside the range of the 1997 study (or was swamped by areas without such treatment, or what I read at the time was wrong).
I'll say this: if you initiate sex with a sleeping woman, someone you just met that night, I look unfavorably on anyone who finds it obvious that you lacked the requisite mens rea for rape.
Civil rights attorney Robert Corry has been charged with sexual assault in Jefferson County for allegedly causing a family friend to perform oral sex on him.
The alleged victim said that Corry, 38, came into the bedroom and tried to have sex with her while she was sleeping at his Arvada home last September, according to court records.
The woman was a close friend who had gone on a three-week European vacation with Corry and his wife, Jessica.
Robert Corry - named one of America's top 40 attorneys under the age of 40 by the National Law Journal - referred a reporter to his attorney, Larry Pozner.
"The complaining witness admits she was giving oral sex to someone but says she didn't know who and was really sleepy and suffers from narcolepsy," Pozner said. "Our response is, tell it to a jury."
The arrest affidavit gives this account:
The 24-year-old woman spent the night at the Corrys' home Sept. 23 because she had been drinking at a dinner party there that evening and had become extremely groggy.
About 3:30 a.m., the woman's boyfriend went home and she was helped up to bed by Jessica Corry. The woman was so tired that she fell asleep fully clothed.
She said she was roused from a deep sleep to find she was naked with a naked man on top of her, fondling her. Confused from her narcolepsy and deep sleep, she said at first she thought the man was her boyfriend.
She said she didn't realize he was Corry until the man spoke to her while she was performing oral sex on him, and she realized it was Corry's voice.
She told police she pushed him away, saying, "How could this happen?"
She said that Corry replied that he didn't know and that she had made him come into the room.
She got dressed, phoned a friend to pick her up and left the house.
At first, Corry said he didn't assault the woman, according to the affidavit, but then said he had been drinking and didn't remember what had happened. Later, he said he recalled going into the bedroom and that he thought the woman consented.
He "blamed the alcohol for making him less able to control his impulses, and he added that he cannot believe he would be capable of doing something like this to (the woman)," the affidavit said.
Corry also blamed alcohol in 1998 when he was charged in Washington, D.C., with menacing some drinking buddies with a shotgun. Corry was a lawyer for the House Judiciary Committee at the time. He was sentenced to 35 days in jail.
Corry is scheduled to be in court May 30 for arraignment on the two Jefferson County charges of sexual assault. The Adams County district attorney's office is prosecuting the case because Jefferson County District Attorney Scott Storey knows Jessica Peck Corry, who directs the campus accountability project for the Independence Institute. She unsuccessfully ran for the state Senate in 2004.
Robert Corry is a civil rights lawyer who has handled election issues, First Amendment and medical marijuana cases.
Well, it certainly depends on what you mean by "initiate," doesn't it? If you mean actual penetration, then I agree. But that's certainly not clear from the article, and a pretty reasonable reading of it is that "initiating" sex means engaging in foreplay, not in actually penetrating her.
I see few similarities. The key to the "Daily Telegraph" case from the original post is that the defendant had never been in the home before and was drunk. In your story from the "Rocky Mountain News", the defendant is in his own home and having sex with a person, whether drunk or not, he admittedly knew was not his wife. Corry simply says he gave into his impulses, not that he too was unaware of who he was having relations with.
a. instances where the act was accomplished by perp's disguising himself as, or pretending to be, another person, the victim's actual existing spouse (sort of like in the Telegraph story)
or
b. cases where it was accomplished by fraudulently inducing that victim to believe, falsely, that (as a result, e.g. of a wedding performed by the next-door neighbor, the mechanic, in a clerical robe, with a coupon instead of a license)the perp., whose identity she is clear upon, is in fact now married to her, and is thus her spouse, and it's therefore OK?
anyone know of any such cases actually prosecuted to verdict?
rfgs
The key point is that if (a) were the concern, we would also expect the statute to criminalize any case in which the defendant tricks the victim into having sex by disguising his identity, whether or not he disguises himself as the victim's husband or merely as her boyfriend. It's the "we're married, so that makes it okay" scenario that is the real concern.
But imao -
Two facts are important -
Was the victim asleep?
and did his date give consent? (Prior)
If the answer is yes and no clearly he is guilty of some kind of sexual assault.
Maybe I am wrong, I am very buzzed, but it seems to me if he did not have a prior, yes!, touching any sleeping women would be a crime. Maybe not rape but a sex crime.
If your wife drinks a bunch of white wine and I mess around with her until she wakes up and says NO! I am still a sick sex offender.
Unless I have some very convincing reason to believe I had a prior yes.
He is guilty in the abstract but in the her and now those two pretty big ifs will probably allow a smart lawyer to get him off.
Whatever.
So...she invited him back to her flat for....sex?....decided upon arrival he was too drunk to perform?...he slept some of it off and decided to try again to do what he was invited to do?
So...her boyfriend came back to her flat for...sex?...but was too pooped to pop...she thought he slept some of it off so he could try again at what he had come over to do?
Sounds like a case of mistaken ships. No liability.
If the defendant knew he was having sex with the wrong person, but that person continued to have sex with him, did he reasonably believe she had manifested or implied her consent?
However, as a practical manner he can always testify that this is what happened, Even if the jury finds the woman a completely credible witness they can't be sure she didn't start responding to the guys touches in her sleep but they guy assumed she was awake. I mean hell a couple who are friends of mine have actually woken up and found themselves having sex (yes apparently both of them sorta got into the position while asleep).
Sure, I agree that something in this situation smells fishy as well but my point is that unless there are other compelling facts we are missing (like the guy testified to the fact that he entered the woman while she was still asleep) it seems impossible to conclude beyond a reasonable doubt that the guy's position wasn't totally symetric with the girl's, i.e., they both honestly thought they were having consenting sex with someone completely different.
It seems to me this isn't that clear. Is consenting directed at some indexical (this very sex act) in which case she did consent or is it only directed at an act under some particular description (sex with my boyfriend right now).
I mean do you mean to suggest that in the abscence of some spousal impersonation statute no rape has been committed if a sleezy individual delibrately impersonates someone's s.o. at a costume party for the purposes of having sex with her?
Maybe this is true but it's not clear to me.
Your (or your partners') technique is quite lacking if "initiating" is the same as "penetrating" or if "initiating" and "completing" the act don't leave time to indicate consent or lack thereof.
The article doesn't say "penetrating" or "completing", so I'm not going to read that into the story.
1) The woman may have, while in the midst of a narcoleptic attack, said and even done things while literally asleep ("automatic behavior"). She probably would not have remembered them when awake or done them had she been conscious. We took gross advantage of this as children to get Mom to agree to things we knew she really didn't want us to do, so believe me, I have firsthand knowledge. :)
2) If she was in a "deep sleep," as she claims, scenario (1) is not so likely. What is somewhat likelier is that she was cataleptic, "sleep paralyzed," and that he may have taken her nonresistance as acquiescence. The aftereffects of the catalepsy may also have contributed to her confusion upon waking.
3) Having just spent three weeks traveling with a narcoleptic woman, who would have suffered attacks from once or twice to often as several times a day even with medication, Corry could not possibly have been unaware that something was not normal unless he was just pathetically obtuse, which is unfortunately not uncommon. At least he would have noticed that she was prone to nap often and sleep so deeply that it would have been very difficult to wake her up until she woke up on her own.
And for any ladies reading who may be concerned by the supposed lack of decent, available men, might the above and cases such as this* and the Duke lacrosse investigation give pause for thought? You might be an entirely reasonable and decent individual yourself, but I doubt you would claim to always be so and certainly a significant number of your peers are not. I ask you, would you subject yourself to such an arbitrary regime, wherein your entire life could be destroyed by a single malicious claim of an event perhaps decades ago for which maybe neither proof nor witnesses exist and yet in which you face arrayed against you not only the mighty resources of the state, but also the political and social, if not quite yet legal**, presumption of guilt? If you were prudent and/or intelligent, or had expended considerable effort to accumulate assets or improve your potential in life, would you not simply seek to avoid any risk at all of becoming entangled in such a scenario? If you would do that yourself, what makes you think that men with similar characteristics will not do likewise? Yet surely these are the very men you most want to be in the marriage and dating market. And if such men abandon the marriage and dating market, either by emigrating, seeking foreign brides, or simply joining the marriage strike, what will that do to your dating options? To the extent that you personally repeat unfounded or exaggerated scare stories to your friends or are swayed by politicians offering ever more draconian policies and ill-defined law covering the intimate interaction of the genders, are you not at least partially responsible for your own predicament?
*http://www.timesonline.co.uk/article/0,,2-2147038,00.html
** the jurisdictions of ambitious, up-for-re-election Duke prosecutors excepted perhaps
By attracting/distracting audiences with sleaze, they hope to sneak past us some legal precedents that will be useful to someone else later on. So, what are the long range goals they could hope to achieve?
Something like: Just because you hang around with terrorists and act like a terrorist and engage in high risk activities, and are aware of dangerous acts, and give the impression you approve them is no reason to hold your associations against you, because you were only trying to be friendly, and you never really thought of yourself as a bad person (and besides, you are obviously quite stupid)....
I don't think it's as mundane as "Drunken burglar claims he didn't realize he was in the wrong house," or "Sleep driving! Only after he was apprehended driving a stolen car, he was diagnosed as a narcoleptic."
I don't think the correct legal answer is particularly difficult to figure out. I think the only reasons there is debate here are (1) there is uncertainty regarding the facts, as opposed to the law; and (2) we are mostly opining off-the-cuff.
If anyone doubts whether it is rape to initiate sex with an unconscious woman one just met the same night, I believe the flaw lies with them, not with a supposed lack of clarity in our legal system.
And for any ladies reading who may be concerned by the supposed lack of decent, available men, might the above and cases such as this* and the Duke lacrosse investigation give pause for thought?...
And if such men abandon the marriage and dating market, either by emigrating, seeking foreign brides, or simply joining the marriage strike, what will that do to your dating options?
I don't have any real response to these points, I just felt they ought to be separately noted for posterity's sake.
Actually, I think this goes the other way. If the woman is drunk, then she can't consent. But the man's inebriation is not a defense to a crime.
So the consent can be given conditionally. ("I consent on the condition that you are who I think you are.") We don't have a problem that deceit is punishable. Historically the condition could be on a future act, or the present intention to complete a future act -- what are the elements of the crime of seduction? (In particuar, what are the elements of a "false promise of marriage"?)
How far can this extend? On what kinds of current belief, provable over the course of time, can consent be given conditionally? "I consent to engage in sexual intercourse with you on condition that you marry me, and honor those vows of marriage"? "I consent now on condition that you be a good husband once we're married"? "I consent now on condition that you be the fantastic lover that I hope you are"? Or as in the old joke, "I consent now on condition that you pay me later"?
Sex is not like other stuff. For too many people, talking about it in such detail eliminates a desirable element of spontaneity.
And the element of consent is much more important in sex than in assault, if the domestic violence folks are to be believed: Apparently a battered spouse cannot have given consent to be hit, even if that is how the couple communicates (any 1st Amendment issues there? And a kick in the shins or a slap in the face can be quite communicative!) -- so as long as we have mandatory arrest in domestic violence, oughtn't there to be mandatory arrest in all cases of sexual intercourse? After all, marriage is just a license to rape.
Irish foreplay: Brace yourself Bridget.
The problem is only one of proof. How can one prove to the satisfaction of the jury that the woman truly believed the man was her husband? Given the presumption of innocence and requirement of proof beyond a reasonable doubt, powerful arguments regarding the woman's character would have to be brought to bear.
The woman in the Australian case cannot come close to this situation. She is sharing an apartment with another woman. Men are coming and going from the apartment. Who's to say exactly what happened?
She might be better off in civil court with a sexual battery claim: preponderance of the evidence.
Every husband, wife and long term cohabitor (where spousal rape isn't defined away) is a rapist under your twisted use of "initiate" and "unconscious".
Sure, it's quite criminal if you limit the meaning of "initiate" to "penetrate" and "unsconscious" to "unwakeable". It's clearly not a crime if you limit "initiate" to "request" and "unconscious" to "dozed off".
Sure, I guess, if you think every husband, wife and long term cohabitor is a "woman one just met the same night." Maybe my definition is twisted, or maybe you just didn't read it.
Or maybe the duration of acquaintance is irrelevant and you didn't address the substantive point because you couldn't.
An act is rape whether the victim is newly acquainted or not. Your definition stinks, even limited to newly acquainted women.