Rape and most of the other sex offenses don’t require a culpable mental state in NY , making them strict liability offenses. Lack of consent is defined as resulting from forcible compulsion, incapacity to consent (for a number of different reasons) or for some offenses any circumstances “in which the victim does not expressly or impliedly acquiesce in the actors conduct.”
I understand that they wanted to show that she had the capacity to consent then, and therefore still had it. What I don’t understand is how it gets from her indication that she “let them have intercourse with her” to those encounters were consensual. I mean, she “let” the deliveryman have intercourse with her too (she didn’t say “no” or “stop”) and that was apparently not enough to make that encounter consensual.
Apparently, she was evaluated by a defense expert to determine if she was capable of consenting to the deliveryman. I don’t see how his opinion of whether she was capable of consenting 11 years ago would be relevant, given that he presumably testified that in his opinion she was capable of consenting to the deliveryman. That’s the issue.
Since apparently the state expert’s position was that in all three encounters she was incapable of consent, and the defense expert was of the opinion that all three were consensual, I can’t see a purpose to bringing those encounters up- unless it was to imply that “she had sex before, so she must have been able to consent this time” which first of all, is inaccurate and secondly is pretty close to the reason that rape shield laws exist.
I realize that, but my point was pretty much the same as what doreen just said - there is evidence that she ever consented to sex.
So what would be the point in bringing up the old cases? Basically they are identical to the current case - in all cases she apparently did not say “no”, but lack of saying “no” is not consent. I don’t see how the old cases prove anything.
IANALawyer.
I believe the application of the “Rape Shield” laws was quite appropriate – as others have pointed out, yes, she had had sex before and very possibly with apparent “consent”, but there was no real consent as she was as unable to give her consent previously as she is now. Her prior sexual history could tell the court nothing.
I am curious about this:
“Borderline range for being mentally retarded”? So how was this “delivery man” meant to ascertain this? Could he not have genuinely believed that while she was clearly below average intelligence that she was not so much so as to be incapable of consent? (Particularly, as English wasn’t her first language, her lack of intellect could have been “disguised” by her poor English.)
But also, if the boundary for capacity to consent is the same boundary for mental retardment then presumably she was “borderline incapable of consent”? "Borderline to me means “maybe yes, maybe no”. But what of the credo “guilty beyond all reasonable doubt”?
Can I ask a hypothetical? What if “delivery man” was himself borderline mentally retarded? Are things changed?