Wrong woman (almost) raped...

[Freudian Slit]

http://www.cnn.com/2004/LAW/04/01/rape.fantasy.reut/index.html

Details are here. Essentially, a guy set up a tryst with a woman on the internet, in which he would break into her apartment, having his way with her, part of a rape fantasy thing. Problem? He broke into the wrong apartment, and nearly raped another woman.

The charges of intent to commit rape are being dropped. What do you guys think? If he had actually had sex with her, would it have been rape? And is it attempted rape now? (In his mind, he's having a pre-planned out, consensual encounter, but in hers...well, obviously not.)

[pizzabrat]

He has to be prosecuted to show that mistakes like that are to be taken seriously. Even though it was just a wacky mix up, an innocent woman was still assaulted. I think they rightfully dropped the intent to rape charge, though, since he didn't intend to rape her. But he did break, enter, and assault.

[Bricker]

Well, if you accept the facts in the story as true, theoretically he is not guilty of any of those crimes. He believed he had the permission of the woman to enter the apartment, and to touch her. His belief negates the mens rea - the guilty mind - necessary for a crime.

I think his belief has to be both subjectively present and objectively reasonable -- in other words, even if he had a good-faith belief he was entitled to enter the White House at will, it's not an objectively reasonable position. So the above analysis may change based on how, exactly, the arrangements were made.

In any event, he's entered a plea of guilty, which usually waives any non-jurisdictional complaints.

- Rick

[capacitor]

Wow. That was messed up.

Since the sex would presumably be most unwelcome, whether for play or not, it would be rape.

Good thing the guy stopped in time, or else he would have to spend the rest of his life playing with the Tossed Salad Man.

[Tokyo_Mann]

He believed he had the permission of the woman to enter the apartment, and to touch her. His belief negates the mens rea - the guilty mind - necessary for a crime.
This would be interesting to have explained.

From a very quick search, I found the URL=http://www.encyclopedia4u.com/m/mens-rea.html]following[/URL]
The Model Penal Code, a publication of the American Law Institute, defines mens rea in particularly clear terms and has been adopted by much of the United States:
Purpose: the actor's conscious object is to commit the proscribed act.
Knowledge: the actor knows that the proscribed act will certainly occur as a result of his actions.
Recklessness: the actor is aware of a substantial and unjustifiable risk that the proscribed act will occur as a result of his actions.
Negligence: the actor reasonably should know that the proscribed act will occur as a result of his actions.

Without knowing any of the details of the arrangement, it certainly seems that he demonstrated recklessness; hence, there was mens rea.

[pravnik]

Bricker knows of which he speaks. He is referring to the common law definition of rape. At common law, rape is a "specific intent" crime, meaning that the act must be done with a specific intent in mind. If one incorrectly but reasonably believes that the other person was consenting to intercourse, no specific intent exists and thus no rape occurred, legally speaking.

The Model Penal Code, or MPC, does away with with specific intent crimes and general consent crimes; however, not every statute that utilizes the MPC as a guide uses all four categories (wouldn't make much sense to have four categories if criminal negligence meant culpability in every crime). In Texas, for example, sexual assault must occur either intentionally or knowingly, which roughly corresponds to the common law rule. Recklessness or criminal negligence doesn't rise to the level of sexual assualt. Even if "recklessly" were a category, the assailant in the OP's behavior probably wouldn't have qualified. "Recklessly" under the MPC means that the actor actually knows that his behavior creates a substantial and unjustifiable risk, and consciously chooses to disregard that risk. Sounds like he wasn't consciously aware of much of anything. Criminal negligence would probably fit the bill.

[Bricker]

This would be interesting to have explained.

From a very quick search, I found the URL=http://www.encyclopedia4u.com/m/mens-rea.html]following[/URL]

Without knowing any of the details of the arrangement, it certainly seems that he demonstrated recklessness; hence, there was mens rea.

You seem to be reading the paragraph you quoted as though any crime is covered by any definition therein -- in other words, mere negligence is always sufficient to establish criminal liability in any crime that has a mens rea element. That's not the case.

The MPC is offering different levels and definitions for those levels of culpable mental states. Even given a crime statutorily defined under the MPC, it's stil quite possible to define a crime as having to occur "Purposefully," the first state mentioned, or "Knowingly," the second state mentioned.
Indeed, I'm willing to bet that almost every state that doesn't use the common-law definition still requires a knowing or purposeful state of mind for sexual assault.

- Rick

[Una Persson]

I've followed this disturbing story, and the level of recklessness shown by the defendant seems way over the top. It seems his resulting punishment was incredibly light. He's also lucky he didn't break into the house of someone armed, I suppose.

[Master Wang-Ka]

I'm no lawyer... but from what I understand of the case, he broke into her home, assaulted her, but did not actually rape her. He got suspicious because she was putting up such a fight, and asked her some questions to verify the facts. When he realized he was in the wrong apartment, he ceased and desisted.

This does not alter the fact that he broke into someone's apartment and attacked them, and certainly he should be prosecuted for these crimes. Dumb SOB could at least verify his facts before he comes ploughing through a window or whatever...

HAD he forcibly penetrated her, sure, it would have been rape. Just because HE thought it was "consensual" does not mean it WAS. I think that a case of mistaken identity would not have protected him from that charge. Ignorance is no excuse; this is a precedent many times over.

Insanity -- the inability to tell right from wrong -- MIGHT be, but it's a notoriously hard sell. Once the jury found out about this internet rape fantasy thing, I think his goose woulda been cooked.

[vetbridge]

Dumb SOB could at least verify his facts before he comes ploughing through a window or whatever....

Yep, just like the police always do before using a battering ram and sending in SWAT. </sarcasm>

Seriously, though...I know he entered a guilty plea and all, but if this case went to trial anyone have an idea how a defense that used "police mistakes" to show that "these things happen" would work?

[Jon the Geek]

This scenario was on NYPD Blue a couple weeks ago... except the mistress of the raped woman set it all up, so the guy HAD confirmed the location.

Now that I see the article was actually posted this week, the NYPD Blue coincidence concerns me. I hope they have emails confirming that he had set something up...

[Jon the Geek]

Nevermind, I decided I should actually read the article. The NYPD Blue episode was based on this, not the other way around. Phew.

[Headcoat]

What if he "raped" the correct woman, and she later decided to press charges? Would email exchanges between them planning this out absolve him in court?

[Coin]

What if he "raped" the correct woman, and she later decided to press charges? Would email exchanges between them planning this out absolve him in court?

It seems to me (IANAL) that it ought to. If she's given consent for him to commit a sex act with her, it's not actual rape, no matter how much it is staged to look and feel like it.

The guy's an idiot, though. How could you NOT double-check before a thing like this to make sure you had the right apartment? He must have known how this would look to the police if he broke into the wrong apartment (not to mention what the victim must have been thinking.

[Master Wang-Ka]

Theoretically, if the cops smash down my door and terrorize me, when their warrant specifies the place next door, I can press charges like a motherhonker.

However, the judge has the call as to whether or not to throw the case out. Then my only option is to make it a civil matter.

Given this idiot's circumstances, I really doubt any sane judge would simply throw the matter out on the basis of "mistake." He may choose to go easy on the poor fool, simply because no actual harm was intended, but the fact remains that he victimized an innocent woman who had not in any way given consent for any of this.

[DocCathode]

What if he "raped" the correct woman, and she later decided to press charges? Would email exchanges between them planning this out absolve him in court?

IANAL But, that depends on when and why she decided to press charges. If she consented during the act, but later decided that the whole thing was icky, then yes. If, however, she revoked consent before the sex occured, then the e-mails may come into play. If they had decided on a safe word (for you vanilla folks<I assume this includes the Dope's own Vanilla.>, during a lot of BDSM activities, a person may be helpless and screaming in pain or begging for mercy. These are not genuine requests for help or an actual revocation of consent. They are part of the role being played. The partners agree on a safe word to be used should the sub actually wish the act to stop. Thus 'Please, I'm begging you, stop.' will be ignored. But the dominant partner will stop immediately upon being told 'banana'.), and she used it, it's rape.

[alaricthegoth]

this is a matter of some controversy. There was a case in NYC somewhat on point.

guy a girl have torrid email exchanges re:bdsm, him top, her bottom

Hi jinks ensue.

Remorse sets in, charges are made

Emails excluded pursuant to rape shield law

result:10-20years

(BUT, YOUR HONOR...)

Appeal:emails should have come in, ends with dimissal, (after four years of pouring Ranch Dressing directly IN the Hidden Valley...)

Moral:videotape anything weird....

[wonderwench]

Oh my goodness.

Regardless of his intent or belief, if he had committed the act, it would have been rape to the victim. Ignorance is not an excuse.

[Bricker]

Sheesh.

OK. Here is a hypothetical:

Brad Pitt is signed to star in a new action movie: The Revenge of Jonas Grumby. In one scene, his character, the hero, is supposed to swing across the courtyard on a rope, land on the balcony of the villian Grumby, sneak into his room, and smack the dusguised Grumby over the head with a board. Pitt likes to do his own stunts.

As luck would have it, the rope was a bit longer than it should have been, and on the first take Pitt swings and unknowingly lands a floor lower than he should -- worse luck, still, that room has a simialrly dressed man standing there. Unaware that he's in the wrong room, Pitt hits the man across the head with the board, causing a small injury (it was balsa wood, luckily, but enough to cause a bruise).

What crime, if any, is Pitt guilty of?

- Rick

[dakravel]

I think it depends on the person who was receiver of the blow. In any case, comparing a bump on the head to almost being raped is a bit of a stretch, regardless of the intent of the committer of either act.

I doubt the woman in question realized the intentions of the guy and probably thought she was actually going to be raped. I can only imagine that that would be rather stressful and traumatizing, even if the act was never committed.

[bienville]

Brad Pitt swings and unknowingly lands a floor lower than he should -- worse luck, still, that room has a simialrly dressed man standing there. Unaware that he's in the wrong room, Pitt hits the man across the head with the board, causing a small injury (it was balsa wood, luckily, but enough to cause a bruise).


Brad Pitt did this to me once.
We haven't spoken since.

[Shade]

For that matter, there's presumably the suspicion he DELIBERATELY got it wrong...

AFAIK some crimes require intent, some are based soley on what you do (barring insanity) some rest on 'reasonable' beleifs. Regardless of his intent or belief, if he had committed the act, it would have been rape to the victim. Ignorance is not an excuse.How certain does he have to be? If she'd signed a statement with him watching saying 'go ahead, I consent to sex' but didn't mean it because she had a tryst with his identical twin brother who had a fetish about signing stupid documents, what should he have done? What purpose does it serve to punish someone who could not reasonably have been more certain.

Of course, in this case he SHOULD have been a lot more careful - if, hypothetically, I was going to do this I'd be **** sure to have about 5 safeguards...
I think it depends on the person who was receiver of the blow. In any case, comparing a bump on the head to almost being raped is a bit of a stretch, regardless of the intent of the committer of either act.He's not comparing the severity of the acts, but whether a reasonably mistake is a defense. Admittedly, I don't think the comparison helps especially.

[Bricker]

I think it depends on the person who was receiver of the blow. In any case, comparing a bump on the head to almost being raped is a bit of a stretch, regardless of the intent of the committer of either act.


So you believe that in my hypothetical, whether a crime was committed, and what crime was committed, somehow depends on the person who was hit?

Fascinating.

- Rick

[Erasticity]

Theoretically, if the cops smash down my door and terrorize me, when their warrant specifies the place next door, I can press charges like a motherhonker.

Of course, thats why the cops generally shoot first, and verify location after finding no joint on the deceased (and desisted...)

However, the judge has the call as to whether or not to throw the case out. Then my only option is to make it a civil matter.

Judges generally throw out cases of the survivors. It seems if YOU are killed, your relatives can press charges like a motherhonker.

[El Zagna]

As a part of the plea deal, prosecutors dropped charges of intent to commit rape, false imprisonment and possession of illegal drugs. Howard will be sentenced next month.I suspect that drug possession had a lot to do with his guilty plea. I notice that the article mentions what charges were dropped, but doesn't say what he plead guilty to.

[Tokyo_Mann]

OTOH, it could be that prosecution and defense haggled and settled on a charge which would give an agreed on prison term.

[Bricker]

So you believe that in my hypothetical, whether a crime was committed, and what crime was committed, somehow depends on the person who was hit?

Fascinating.

- Rick

And utterly wrong, I might add.

[dakravel]

So you believe that in my hypothetical, whether a crime was committed, and what crime was committed, somehow depends on the person who was hit?

Fascinating.

- Rick

Unfinished thought, don't be so quick to start making snide remarks. What is up with that lately? Everyone on the boards is quick to jump on someone for a single remark without even letting the person explain themselves...

What should have been said is that it depended on the feelings of the attacked towards the situation. Say I'm walking down the street and someone punches me rather hard in the arm. I turn around and I'm about to get pissed, when the guy says, "Holy crap, I swear I thought you were my best friend, I'm so sorry". Am I gonna file charges for assault? No.

Or maybe a more similar case, say I come home after a long day and I'm going upstairs to change. I notice my wife/girlfriend laying down in bed, looking as though she's taking a nap. I hop in bed and begin tickling and doing various things to her (you can pretend I'm naked at this point and sporting a raging boner if it helps the analogy), until I realize it's really not her and it's a friend of hers. I could be tried for rape, but hell if you could find someone who would press charges in her situation.

[UDS]

Unfinished thought, don't be so quick to start making snide remarks. What is up with that lately? Everyone on the boards is quick to jump on someone for a single remark without even letting the person explain themselves...

What should have been said is that it depended on the feelings of the attacked towards the situation. Say I'm walking down the street and someone punches me rather hard in the arm. I turn around and I'm about to get pissed, when the guy says, "Holy crap, I swear I thought you were my best friend, I'm so sorry". Am I gonna file charges for assault? No.

Or maybe a more similar case, say I come home after a long day and I'm going upstairs to change. I notice my wife/girlfriend laying down in bed, looking as though she's taking a nap. I hop in bed and begin tickling and doing various things to her (you can pretend I'm naked at this point and sporting a raging boner if it helps the analogy), until I realize it's really not her and it's a friend of hers. I could be tried for rape, but hell if you could find someone who would press charges in her situation.
But the issue is not whether the victim in this case might wish to press charges, but whether the perpetrator could be convicted. And that depends on his state of mind, not hers.

[Truth Seeker]

Unfinished thought, don't be so quick to start making snide remarks.
Wow. It took you over 24 hours to "complete" your thought. Maybe you should start typing with two fingers.

In any case, your explanation doesn't help your position any. Neither of your hypotheticals are on point. It's not a matter of "pressing charges." If Brad Pitt lacks the requisite mental state, he has not committed a crime. Even if the guy "presses charges," there will not be a criminal conviction. In fact, Brad isn't even civilly liable, though the guy who measured the rope probably is.

In most common law jurisdiction, a "bad act" is not enough for most crimes. You must also have the correct mental state. For example, merely killing someone is not a crime. To be murder, you must act with "malice." If you kill someone by being grossly negligent, you're guilty of manslaughter. If you run down half-a-dozen elementary school students in the cross walk because you were distracted when you spilled hot coffee in your lap, you're not guilty of any crime.

As Bricker points out, assuming this story is true, this guy would not have been guilty of rape because he reasonably believed the victim consented. Yes, it's still traumatic for the "victim," but that's no reason to take it out on the "perpetrator" who, in this case, is actually innocent.

I think his belief has to be both subjectively present and objectively reasonable -- in other words, even if he had a good-faith belief he was entitled to enter the White House at will, it's not an objectively reasonable position.
IIRC, you're right about this but it's never quite made sense to me. Mens rea is, by definition, focused on the defendant's subjective mental state. If he didn't have the guilty mental state, e.g., he really thought she did consent, then it shouldn't matter whether an objectively reasonable person would believe she consented. If you can be convicted wirh an unreasonable but "good faith" belief that consent was present, you've essentialy reduced the mens rea to negligence. Maybe if your good-faith belief is unreasonable enough, you can raise an insanity defense. ;)

[askeptic]

I am honestly asking your opinion not challenging anything you have said.

It seems to me that if Rape is unlawful sexual intercourse with a woman without her consent, then the defendant in this case could not be guilty of Attempted Rape, because he did not have the requisite mens rea. However, had he actually achieved intercourse, would it matter what he in fact believed? There does not seem to be a mens rea element to Rape. The elements are simply intercourse without consent. Have I stayed up too late and missed something simple? I mean he did not attempt to engage in unlawful entercourse, he thought he had consent, so he was attempting (unsuccesfully) to engage in lawfull intercourse.

[Nightime]

I have a problem with the "reasonableness" of getting consent for sex in advance over the internet with someone you have never met.


The guy should have known that, since he had never met the woman, he couldn't know it was really her when he got there.


There is also no way to know if perhaps the person on the internet is setting someone else up.




My feeling is that it is in fact NOT reasonable to get consent for a simulated rape over the internet from someone you never met. Nor is it insanity. It is a negligent disregard for the dangers.

Thus if he had gone through with it, it would be rape.



However, it WAS arguably reasonable for him to go to the agreed place, and make sure before actually doing it. Therefore, since he made sure, and he did not go through with it, it was not attempted rape.

[Nightime]

Just to clarify:


I don't think it was reasonable for him to hit the woman before making sure it was the right woman.


Thus an assault charge is perfectly justified.

[Bricker]

I am honestly asking your opinion not challenging anything you have said.

It seems to me that if Rape is unlawful sexual intercourse with a woman without her consent, then the defendant in this case could not be guilty of Attempted Rape, because he did not have the requisite mens rea. However, had he actually achieved intercourse, would it matter what he in fact believed? There does not seem to be a mens rea element to Rape. The elements are simply intercourse without consent. Have I stayed up too late and missed something simple? I mean he did not attempt to engage in unlawful entercourse, he thought he had consent, so he was attempting (unsuccesfully) to engage in lawfull intercourse.

The general proposition is that there is a mens rea element to every crime. Where the legislature seeks to create a strict liability crime, it generally must explicitly do so.

In Virginia, for example, see Turner v. Commonwealth, 33 Va. App. 88, 92-93,
531 S.E.2d 619, 621 (2000) and Roger D. Groot, Criminal Offenses & Defenses in Virginia 107-18 (2004).

- Rick

[Hamlet]

The Supreme Court of California, in 1975, ruled that a defendant may raise a "mistake of fact" defense to a rape charge in People v. Mayberry. They believed that a reasonable and good faith mistake of fact regarding consent is incompatible with the existence of wrongful intent (also known as mens rea) required for criminal liability. The defense has both a subjective and an objective component. As the California Supreme Court laid out in People v. Williams: "The subjective component asks whether the defendant honestly and in good faith, albeit mistakenly, believed that the victim consented to sexual intercourse." (Ibid.) To satisfy this component, the defendant must adduce evidence of the victim's equivocal conduct on the basis of which he erroneously believed there was consent. (Id. at p. 361.) The objective component "asks whether the defendant's mistake regarding consent was reasonable under the circumstances." (Ibid.) "Thus, regardless of how strongly a defendant may subjectively believe a person has consented to sexual intercourse, the belief must be formed under circumstances society will tolerate as reasonable in order for the defendant to have adduced substantial evidence giving rise to a Mayberry instruction."People v. Williams (1992) 4 Cal.4th 354, 360-361.

This "But I thought she consented" defense is an affirmative defense, in which the defendant has the burden of raising a reasonable doubt as to whether he harbored a reasonable and good faith, but mistaken, belief of consent.

Not that any of this applies in this case, but there you have it.

[Una Persson]

OK, let's take the hypothetic situation a bit further.

A woman wakes up in the middle of the night in darkness to a man actually penetrating her. He is doing this by mistake and does not have the mens rea to be "committing a crime". The woman is naturally somewhat upset to be raped in the dark by a strange man and struggles, then finally grabs a gun under her pillow and shoots the man dead.

She can't claim she was defending herself from a crime now? Because he wasn't committing one?

So...is she committing a crime? Or does she lack the same mens rea?

And doesn't anyone think that IRL someone would *not* end up in jail over this? I really, really doubt that she would escape charges. Nor that the man would escape charges if the hypothetical woman couldn't defend herself, and when the man finished violating her he realized his mistake and said "Oh sorry, wrong house."

And am I to understand that this wouldn't even be a winnable civil case? Given the sorts of drek that some juries made up of rabble allow to win in our courts today?

[Bricker]

OK, let's take the hypothetic situation a bit further.

A woman wakes up in the middle of the night in darkness to a man actually penetrating her. He is doing this by mistake and does not have the mens rea to be "committing a crime". The woman is naturally somewhat upset to be raped in the dark by a strange man and struggles, then finally grabs a gun under her pillow and shoots the man dead.

She can't claim she was defending herself from a crime now? Because he wasn't committing one?

So...is she committing a crime? Or does she lack the same mens rea?

She isn't committing a crime. She is defending herself from physical assault. The fact that the man was not committing a crime is of no moment -- indeed, the same principle that shields him from criminal liabiliity also shields her.

You seem to be operating under the assumption that there must be a crime somewhere in this mess. As it happens, although there's plenty of mayhem and injury, there is no crime.


And doesn't anyone think that IRL someone would *not* end up in jail over this? I really, really doubt that she would escape charges. Nor that the man would escape charges if the hypothetical woman couldn't defend herself, and when the man finished violating her he realized his mistake and said "Oh sorry, wrong house."

Look, in the world of hypotheticals, we all agree on the facts. That's what makes them hypotheticals. In real life, there are plenty of questions of fact to be decided at a trial, and the outcome depends upon the resolution of those questions. Was his belief that he had the right house objectively reasonable? That's for the finder of fact to determine. In our hypo, we slide comfortably past that -- we declare that his belief was, although mistaken, reasonable.



And am I to understand that this wouldn't even be a winnable civil case? Given the sorts of drek that some juries made up of rabble allow to win in our courts today?

Same thing -- in real life, juries have to be convinced of facts. We were discussing how the concept of mens rea applies to the various hypotheticals here - what, as a matter of law, is the answer to a given set of facts.

- Rick

[DocCathode]

Una Person
I think the woman's plea of self defense would hinge more on that she had reason to fear for her life. I can't see why the defense would raise the issue of whether or not the man had committed a crime. They need simply present the facts, and convince the jury that the woman feared for her life and acted out of self defense.

IANALawyer, but I assume things like the incident in the OP are one of the reasons why we have seperate charges for sexual assault and such.

[Una Persson]

OK, I (of course) agree that the hypothetical is different from IRL. It's just in some issues, the difference is not so large, and in this one I believe the difference between the hypothetical and the real is profound.

DocCathode: isn't it the other way around? Doesn't the prosecution have to prove that she was *not* in fear of her life and/or acting out of self defense?

[Yumanite]

In a case like this, you should have 2 safe words, one which means 'OK' and one which means 'not OK'. The responsible thing for them to do would have been to work out a 'go ahead' code to be used at the very beginning.
e.g.: he crashes through the window, and she yells out, "Klaatu Barada Nicto!", so he knows it's OK.

Of course, it may be even better to not agree to this kind of scenario with someone you've never even met, but YMMV.

[Bricker]

DocCathode: isn't it the other way around? Doesn't the prosecution have to prove that she was *not* in fear of her life and/or acting out of self defense?

No.

Self-defense is generally an affirmative defense, meaning that while of course the prosecution must prove beyond a reasonable doubt each element of the crime, the accused may negate criminal liability by proving self-defense.

Some jurisdictions may vary.

- Rick

[Ellis Dee]

I suspect that drug possession had a lot to do with his guilty plea. I notice that the article mentions what charges were dropped, but doesn't say what he plead guilty to.They led with it: "A California man has pleaded guilty to residential burglary..."