Another look at Rape Shield: ability to consent

Great Debates
1

The victim in this case was one T.O. She was was thirty years old lived with her younger sister and mother. The family were refugees for whom English was a second language.

T.O. had been evaluated in the borderline range for being mentally retarded.

A delivery man, at the home dropping off food, had sex with T.O. Two weeks later, she reported to a neighbor that she had been sexually molested. The delivery man was interviewed by police. He acknowledged the sexual conduct, said that it was consensual, and was not asked if he knew she was mentally retarded. He was arrested and charged with rape.

At trial, the state took the position thorugh its expert witness that due to her mental retardation, T.O. lacked the ability to consent to sex. The defense produced an expert witness, a psychologist, that claimed T.O. knew the nature of the sexual acts and knew that she had the right to say no. It was uncontested that T.O. never said “No” or “Stop” during the sexual act.

In an effort to show that T.O. could meaningfully consent to sex, the defense sought to admit evidence of T.O.'s two prior sexual experiences, the last of which occurred eleven years before the encounter at hand. According to the state’s expert, the first incident occurred when T.O. was nineteen and amounted to a sexual assault. Concerning the second incident, the state’s expert quoted T.O. as saying the boy insisted and she wasn’t interested in sex. She added, “I want to be a straight person. Not get married. Have no kids.”

The report of defendant’s expert related T.O.'s description of these incidents quite differently. According to that expert, T.O. indicated that in each instance she “let” the boys have intercourse with her. He described them as consensual encounters.

When the defense asked the state’s expert if he had questioned T.O. about the past sexual encounters, the prosecution objected, citing the Rape Shield law. The defense argued that the issue was relevant because it showed that T.O. could and did consent to those earlier encounters.

The defense lost the motion, the evidence was excluded, and the delivery man convicted.

Was this a fair trial?

  • Rick
2

My completely uninformed WAG, it does not sound like it to me based on reading your post. It is basically her word against his…apparently that is enough to send someone to jail and ruin his life forever. Again, I have no real idea, this is based on what I have read here. There is probably much more to it that I haven’t considered.

3

Either you misread the OP, or I’m misreading you. There’s no word against word here. No events are contested. All that’s under question is her state of mind.

4

I don’t know if it was it was a fair trial, but my reason has nothing to do with the rape shield laws. You said the delivery man was never asked if he knew of T.O.'s mental retardation. Was that available as a defense and did he use it?

But anyway, about the rape shield law- maybe it’s just me, but I don’t see how T.O. saying she “let” the boys have intercourse with her is relevant to her capacity to consent. Just because she said she let them doesn’t mean she was capable of consenting to those encounters either. I mean, that’s sort of the point of some people being classified as incapable of consenting- that even if they say yes, it doesn’t qualify as consent.

5

I don’t know if it’s fair, but it sounds just.

If you want to name the jurisdiction, I’ll look up the judgement. Oh, wait, was this in the UK?

6

Wasn’t this an episode of Law & Order?

7

Excellent question. If the guy thought the had valid consent, there’s no mens rea regardless of her state of mind. Moreover, I’m not at all sure that lack of capacity is an exception to the element of lack of consent.
Beyond that, the question you have to ask is what rape shield laws are intended to accomplish. There’s a decent argument to be made that sexual history is irrelevant or too prejudicial when the issue is actual consent, but not when the issue is mental capacity to consent. At least, that’s what I’d argue in favor if admissibility if I were the defendant’s attorney.

8

Why does it matter whether or not he was asked if he knew about the girls mental capacity? How can the defendant use this as a defense?

“Your honor, my client was never asked before the time of arrest if he knew the plaintiff was retarded. Why if he was asked that, he surely would have said no.”

So the accused would have denied knowing he was having sex with someone unable to consent, just like he denied it when asked after being arrested. What’s the difference?

9

One problem for the guy - even though she never said “stop” or “no”, that does not mean she consented!

Consent means more than the lack of saying “no.”

Obviously I don’t know, but I have a strong feeling that she never consented, or even appeared to consent.

10

Nightime-- Sadly, you are quite right. Consent is more than the lack of saying no. These days, a woman merely has to have the tiniest thought-- days after the sex occurred-- that she didn’t like what she decided to do, and the man, who should have been able to read the woman’s mind in the future, can be convicted and locked away for a long time.

Thank goodness we are standing up for women!

11

Actually, rape has one of the lowest conviction rates of any crimes. Only 6% of rapes that occur (including unreported rapes- rape is also the most unreported crime) end with someone serveing jail time. Proving a rape “beyond reasonable doubt” is hard even with a fair amount of evidence. Proving a rape that did not happen “beyond a reasonable doubt” is next to impossible. Considering that you are highly unlikely to be sent to jail for a rape you did commit, you are even less likely to go to jail you did not.

Despite apparently popular belief, the criminal justice system does not suddnely suspend all of it’s practices and resort to kangaroo-dom when rape is involved. And the definition of rape (which incidently is the same one advocated by rape crisis conselers and women’s advocacy organizations) is that it is a situation where the woman is unable to consent.

But you wern’t actually interested in reality, were you?

12

I don’t think he could ever use the fact that he wasn’t asked about his knowledge as a defense. But it’s entirely possible that his lack of knowledge of her mental retardation could be used as a defense. Depends on the law where the trial is held.

13

In that case, the large numbers of men who are raped apparently do not count.

14

Oh har dee har har. You found the secret feminist conspiracy right there, bub. Next thing you know, it’ll be rape to just look at a woman. Thats our goal you know.

Okay, rape is a situation where a person is subjected to sex that they cannot consent to or cannot resist.

15

It would not be a “defense” at all.

It’s difficult to discuss this question intelilgently without knowing the applicable law. But for the sake of argument, let’s use the Model Penal Code, which has influenced the criminal laws of a fair number of states. The MPC provides offenses for both “rape” and “gross sexual imposition.” Rape is a harder standard to meet, requiring sexual intercourse by serious force or threat of serious force, unconsciousness of the victim, etc. That’s clearly not the case with Bricker’s hypothetical, so let’s move on to “gross sexual imposition.”

GSI is a looser standard. For that crime, the prosecution has to prove the defendant compelled the victim to have intercourse “by any threat that would prevent resistance by a woman of ordinary resolution” or that he knew the victim suffered “from a mental disease or defect which renders her incapable of appraising the nature of her conduct.” Thus, the prosecutor in the hypothetical has to prove that the defendant knew T.O. was so mentally challenged that she couldn’t have known what she was doing. Fat chance under the hypotehtical as given.
The result would be similar under the sexual assault laws of Texas. Here, you have to prove that the defendant “intentionally or knowingly” committed a sex act “without that person’s consent.” Again, the prosecution has to prove not only that the victim didn’t give consent, but that the defendant intended to commit the sexual act without consent or knew that consent was not given. It is insufficient to prove lack of consent without also proving the defendant knew there was no consent.

16

Wow! All I did was complain that your first definition excluded male victims of rape, and you accuse me of being some kind of pig.

17

Maybe, maybe not.

NYS Penal Law

Not only a defense, but an affirmative one. Like I said, depends on the law. While in Texas the prosecutor has to prove that the defendant “intentionally or knowingly” committed a sex act without consent, in NY, once it is proven that the person is incapable of consent, the defendant must prove that he (or she) didn’t know of that incapacity.

18

Interesting. Does that mean, by implication, that there is no mens rea on lack of consent under NY law, i.e., that the defendant doesn’t have to know that the other person does not consent?

19

He was convicted not on a theory that she didn’t consent, but on the theory that she COULD NOT consent. The fact-finder did not reach the question, “Did she consent?”

Presumably, the defense wanted to elicit testimony on the last sexual encounters, and then show that in those cases, she understood what was going on, the issues and pitfalls of having sex, and willingly accepted them – in other words, that THEN, she had the capacity to consent, and so by inference, she still had the capacity to consent for the current case.

So, again, the prosecution’s theory was that due to her mental retardation, T.O. lacked the capacity to consent at all, even if she had said, “Yes, take me now, delivery stud!”

The defense wanted to show that she had the capacity to consent, and wanted to do it by bringing into evidence her previous (supposedly consensual) sexual encounters.

  • Rick
20

As to the exact law – it’s very close to the MPC.

He was convicted of first degree aggravated sexual assault, which forbids, inter alia, an act of sexual penetration when the victim is one whom the actor knew or should have known was physically helpless, mentally defective or mentally incapacitated.

  • Rick