part of the online video campaign is to tell chicks they've been "gang sniffed"...
modern time, resistance is no longer required and the act becomes the force.
berkowitz: taking what she said, was there enough force for forcible rape.
all is doctrinal stuff to get at a complex issue of how does society deal with acquaintance sex that may/not be consensual?
NYPL s. 130.00 sex offenses; definition of terms.
8. forcible compulsion means to compel by either;
(a) use of physical force; or
(b) a threat, express or implied, which places a person in fear of immediate death or physical injury...
mental state is "intent"
what is lack of consent? see NYPL s.130.05 Sex offenses; lack of consent
2. lack of consent results from:
(a) forcible compulsion; or
(b) incapacity to consent; or
(c) where the offense charged is sexual abuse or forcible touching
no reasonableness requirement and it only has to be fear, not fear of physical injury.
in fact, a prison rape case a few years ago established that it's about fear evaluated subjectively.
but the question of force is still unanswered: sex usually requires some amount of force (in which case, all non-consensual sex would be rape)
under NYPL, did he do it???
she asked him to stop, but bryant allegedly blocked her exit, grabbed her and forced her over a chair to rape her. bryant's hands were around the woman's neck, the attorneys said - "a perceived threat of potential strangulation if she resisted his advances."
bryan'ts apology: "i also want to make it clear that i do not question the motives of this young woman... although i truly believe this encounter between us was consensual, i recognize now that she did not and does not view this incident the same way i did. after months of reviewing discovery, listening to her attorney, and even her testimony in person, i now understand how she feels that she did not consent to this encounter."
in NYPL you think he did it. as the procescutor, what do you do?
the mental state is "intent," and if we take him at his word, he did not intend to forcibly rape this woman. what other means in the statute can we use to take him down?
NYPL s. 130.35 Rape in the first degree:
NYPL s.130.25 Rape in the third degree: a person is guilty of rape in the third degree when:
3. he or she engages in sexual intercourse with another person
without such person's consent where such lack of consent is
by reason of some factor other than incapacity to consent.
a reasonable person would have understood and you didn't, then you're stupid and therefore negligent!
class E felony (nonconsentual, negligent)
in each subsection of NYPL 130, you have to figure out what "consent" means in that specific crime, because it varies from the definitions given in s.130.00
so for example, s.130.05(d) -- only applicable for sexual abuse and non-consensual touching
NYPL s.130.52 Forcible touching (misdemeanor)
a person is guilty of forcible touching when such person intentionally, and for no ligitimate purpose, forcibly touches the sexual or other intimate parts of another person for the purpose of degrading or abusing such person; or for the purpose of gratifying the actor's sexual desire.... includes squeezing, grabbing or pinching.
there is also a mental state for the other forms of incapacity:
NYPL 130.10 Defenses
defense is a subjective standard. there is no defense for age, however.
these statutes point out important doctrinal choices of the legislature.
a lot of states don't have "no means no" rape, but many states are like NYS, with their equivalent of rape-3: (1) "clearly expressed" non-consent, (2) "reasonable person in the actor's situation would have understood"
M.T.S.
15 year old girl, and so this is being heard as bench trial by a family court judge.
she says: "i was asleep" (rape-1)
he says: "consent" (no crime)
judge says: "they are both lying: this is what happened - they were making out but she did not say that she wanted to have sex. she didn't say no, and she didn't say yes."
what do we do when they're lack of any clear communication?
U- change behavior ("the criminal law has largely changed the prevalent social attitudes about sexual atonomy and conscious choices to do wrong")
R- punish misbehavior ("no means no" towards "non-consent", using a heavy hand to change common social behavior)
ways defendants respond to charges.
1. failure of proof
2. offesne modifications
3. true defenses
(a) justifications (the D did a GOOD thing)
1. self-defense
2. necessity (choice of evils, accomplish greater good)
(b) excuses (D did a BAD but UNDERSTANDABLE thing)
1. insanity
2. duress ("i was forced")
the difference between justification and excuse is mainly that we consider that D did a good thing and with excuses, D did a bad thing but is not morally culpable.
affirmative defenses: D must prove by a preponderance
burden of production (D raises the burden of production when raising defenses)
burden of persuasion
burden of proof
MPC: prosecution - disprove BARD
NYPL s.25.00 Burdens of Defense
does the prosecution have to disprove the defenses? not until the D raises the issue.
deadly self-defense under common law
1. "there must have been a threat, actual or apparent, of the use of deadly force against the defender."
2. "the threat must have been unlawful and immediate."
3. "the defender must have believed that he was in imminent peril of death or serious bodily harm, and that his response was necessary to save himselve therefrom."
4. "these beliefs must not only have been honestly entertained, but also obvjectively reasonable in light of the surrounding circumstances"
what does
the force: (1) deadly, (2) unlawful, and (3) imminent
the belief: D must believe his use of deadly force is (4) necessary and (5) reasonable
see NYPL s. 35.15!
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