Commonwealth v. Lopez

433 Mass. 722, 745 N.E.2d 961 (2001)

SPINA, J.

The defendant, Kenny Lopez, was convicted on two indictments charging rape and one indictment charging indecent assault and battery on a person over the age of fourteen years. We granted his application for direct appellate review. The defendant claims error in the judge’s refusal to give a mistake of fact instruction to the jury. He asks us to recognize a defendant’s honest and reasonable belief as to a complainant’s consent as a defense to the crime of rape, and to reverse his convictions and grant him a new trial. Based on the record presented, we decline to do so, and affirm the convictions.

1. Background. We summarize facts that the jury could have found. On May 8, 1998, the victim, a seventeen year old girl, was living in a foster home in Springfield. At approximately 3 P.M., she started walking to a restaurant where she had planned to meet her biological mother. On the way, she encountered the defendant. He introduced himself, asked where she was going, and offered to walk with her. The victim met her mother and introduced the defendant as her friend. The defendant said that he lived in the same foster home as the victim and that “they knew each other from school.” Sometime later, the defendant left to make a telephone call. When the victim left the restaurant, the defendant was waiting outside and offered to walk her home. She agreed.

The two walked to a park across the street from the victim’s foster home and talked for approximately twenty to thirty minutes. The victim’s foster sisters were within earshot, and the victim feared that she would be caught violating her foster mother’s rules against bringing “a guy near the house.” The defendant suggested that they take a walk in the woods nearby. At one point, deep in the woods, the victim said that she wanted to go home. The defendant said, “trust me,” and assured her that nothing would happen and that he would not hurt her. The defendant led the victim down a path to a secluded area.

The defendant asked the victim why she was so distant and said that he wanted to start a relationship with her. She said that she did not want to “get into any relationship.” The defendant began making sexual innuendos to which the victim did not respond. He grabbed her by her wrist and began kissing her on the lips. She pulled away and said, “No, I don’t want to do this.” The defendant then told the victim that if she “had sex with him, [she] would love him more.” She repeated, “No, I don’t want to. I don’t want to do this.” He raised her shirt and touched her breasts. She immediately pulled her shirt down and pushed him away.

The defendant then pushed the victim against a slate slab, unbuttoned her pants, and pulled them down. Using his legs to pin down her legs, he produced a condom and asked her to put it on him. The victim said, “No.” The defendant put the condom on and told the victim that he wanted her to put his penis inside her. She said, “No.” He then raped her, and she began to cry. A few minutes later, the victim made a “jerking move” to her left. The defendant became angry, turned her around, pushed her face into the slate, and raped her again. The treating physician described the bruising to the victim’s knees as “significant.” The physician opined that there had been “excessive force and trauma to the [vaginal] area” based on his observation that there was “a lot of swelling” in her external vaginal area and her hymen had been torn and was “still oozing.” The doctor noted that in his experience it was “fairly rare” to see that much swelling and trauma.

The defendant told the victim that she “would get in a lot of trouble” if she said anything. He then grabbed her by the arm, kissed her, and said, “I’ll see you later.” The victim went home and showered. She told her foster mother, who immediately dialed 911. The victim cried hysterically as she spoke to the 911 operator.

The defendant’s version of the encounter was diametrically opposed to that of the victim. He testified that the victim had been a willing and active partner in consensual sexual intercourse. Specifically, the defendant claimed that the victim initiated intimate activity, and never once told him to stop. Additionally, the defendant testified that the victim invited him to a party that evening so that he could meet her friends. The defendant further claimed that when he told her that he would be unable to attend, the victim appeared “mildly upset.”

Before the jury retired, defense counsel requested a mistake of fact instruction as to consent. [The defendant proposed the following instruction: The defendant proposed the following instruction: “If the Commonwealth has not proved beyond a reasonable doubt that the defendant was not motivated by a reasonable and honest belief that the complaining witness consented to sexual intercourse, you must find the defendant not guilty.”] The judge declined to give the instruction, saying that, based “both on the law, as well as on the facts, that instruction is not warranted.” Because the defendant’s theory at trial was that the victim actually consented and not that the defendant was “confused, misled, or mistaken” as to the victim’s willingness to engage in sexual intercourse, the judge concluded that the ultimate question for the jury was simply whether they believed the victim’s or the defendant’s version of the encounter. The decision not to give the instruction provides the basis for this appeal.

2. Mistake of fact instruction. The defendant claims that the judge erred in failing to give his proposed mistake of fact instruction. The defendant, however, was not entitled to this instruction. In Commonwealth v. Ascolillo, 405 Mass. 456, 541 N.E.2d 570 (1989), we held that the defendant was not entitled to a mistake of fact instruction, and declined to adopt a rule that “in order to establish the crime of rape the Commonwealth must prove in every case not only that the defendant intended intercourse but also that he did not act pursuant to an honest and reasonable belief that the victim consented” (emphasis added). Id. at 463. Neither the plain language of our rape statute nor this court’s decisions prior to the Ascolillo decision warrant a different result.

 A fundamental tenet of criminal law is that culpability requires a showing that the prohibited conduct (actus reus) was committed with the concomitant mental state (mens rea) prescribed for the offense. See, e.g., Morissette v. United States, 342 U.S. 246, 250 (1952) (“The contention that an injury can amount to a crime only when inflicted by intention is no provincial or transient notion”). The mistake of fact “defense” is available where the mistake negates the existence of a mental state essential to a material element of the offense. See Model Penal Code § 2.04(1)(a) (1985) (“Ignorance or mistake as to a matter of fact or law is a defense if: . . . the ignorance or mistake negatives the purpose, knowledge, belief, recklessness or negligence required to establish a material element of the offense”). In determining whether the defendant’s honest and reasonable belief as to the victim’s consent would relieve him of culpability, it is necessary to review the required elements of the crime of rape.

At common law, rape was defined as “the carnal knowledge of a woman forcibly and against her will.” 4 W. Blackstone, Commentaries 210. See Commonwealth v. Chretien, 383 Mass. 123, 127, 417 N.E.2d 1203 (1981). Since 1642, rape has been proscribed by statute in this Commonwealth. See Commonwealth v. Burke, 105 Mass. 376, 380 (1870) (citing first rape statute codified at 2 Mass. Col. Rec. 21). While there have been several revisions to this statute, the definition and the required elements of the crime have remained essentially unchanged since its original enactment. The current rape statute, G. L. c. 265, § 22 (b), provides in pertinent part:

“Whoever has sexual intercourse or unnatural sexual intercourse with a person and compels such person to submit by force and against his will, or compels such person to submit by threat of bodily injury, shall be punished by imprisonment in the state prison for not more than twenty years.”

This statute follows the common-law definition of rape, and requires the Commonwealth to prove beyond a reasonable doubt that the defendant committed (1) sexual intercourse (2) by force or threat of force and against the will of the victim….

As to the first element, there has been very little disagreement. Sexual intercourse is defined as penetration of the victim, regardless of degree. The second element has proven to be more complicated. We have construed the element, “by force and against his will,” as truly encompassing two separate elements each of which must independently be satisfied. See generally Commonwealth v. Caracciola, 409 Mass. 648, 653-654, 569 N.E.2d 774 (1991) (stating elements of “force” and “against his will” not superfluous, but instead must be read together). Therefore, the Commonwealth must demonstrate beyond a reasonable doubt that the defendant committed sexual intercourse (1) by means of physical force …; nonphysical, constructive force …; or threats of bodily harm, either explicit or implicit …; and (2) at the time of penetration, there was no consent.

Although the Commonwealth must prove lack of consent, the “elements necessary for rape do not require that the defendant intend the intercourse be without consent.” Commonwealth v. Grant, 391 Mass. 645, 650, 464 N.E.2d 33 (1984). … Historically, the relevant inquiry has been limited to consent in fact, and no mens rea or knowledge as to the lack of consent has ever been required. See Commonwealth v. Burke, 105 Mass. at 377 (“The simple question, expressed in the briefest form, is, Was the [victim] willing or unwilling?”). See also Commonwealth v. Lefkowitz, 20 Mass. App. Ct. 513 519 [1985] (“the prosecution has proved rape if the jury concludes that the intercourse was in fact nonconsensual [that is, effectuated by force or by threat of bodily injury], without any special emphasis on the defendant’s state of mind”).

A mistake of fact as to consent, therefore, has very little application to our rape statute. Because G. L. c. 265, § 22, does not require proof of a defendant’s knowledge of the victim’s lack of consent or intent to engage in nonconsensual intercourse as a material element of the offense, a mistake as to that consent cannot, therefore, negate a mental state required for commission of the prohibited conduct. Any perception (reasonable, honest, or otherwise) of the defendant as to the victim’s consent is consequently not relevant to a rape prosecution. See Cavallaro, Big Mistake: Eroding the Defense of Mistake of Fact About Consent in Rape, 86 J. Crim. L. & Criminology 815, 818 (1996) (mistake of fact instruction is “available as a defense to a particular charge only where the definition of the offense makes a defendant’s mental state as to a particular element material”).

This is not to say, contrary to the defendant’s suggestion, that the absence of any mens rea as to the consent element transforms rape into a strict liability crime. It does not. Rape, at common law and pursuant to G. L. c. 265, § 22, is a general intent crime, and proof that a defendant intended sexual intercourse by force coupled with proof that the victim did not in fact consent is sufficient to maintain a conviction. See Bryden, Redefining Rape, 3 Buff. Crim. L. Rev. 317, 325 (2000) (“At common law, rape was a ‘general intent’ crime: The requisite intention was merely to perform the sexual act, rather than have nonconsensual intercourse”).

Other jurisdictions have held that a mistake of fact instruction is necessary to prevent injustice. New Jersey, for instance, does not require the force necessary for rape to be anything more than what is needed to accomplish penetration. See In re M.T.S., 129 N.J. 422, 444, 609 A.2d 1266 (1992) (“physical force in excess of that inherent in the act of sexual penetration is not required for such penetration to be unlawful”). Thus, an instruction as to a defendant’s honest and reasonable belief as to consent is available in New Jersey to mitigate the undesirable and unforeseen consequences that may flow from this construction. By contrast, in this Commonwealth, unless the putative victim has been rendered incapable of consent, the prosecution must prove that the defendant compelled the victim’s submission by use of physical force; nonphysical, constructive force; or threat of force. … Proof of the element of force, therefore, should negate any possible mistake as to consent. See ... Estrich, Rape, 95 Yale L.J. 1087, 1098-1099 (1986) (“The requirement that sexual intercourse be accompanied by force or threat of force to constitute rape provides a [defendant] with some protection against mistakes as to consent”).

 We also have concerns that the mistake of fact defense would tend to eviscerate the long-standing rule in this Commonwealth that victims need not use any force to resist an attack…. A shift in focus from the victim’s to the defendant’s state of mind might require victims to use physical force in order to communicate an unqualified lack of consent to defeat any honest and reasonable belief as to consent. The mistake of fact defense is incompatible with the evolution of our jurisprudence with respect to the crime of rape.

We are cognizant that our interpretation is not shared by the majority of other jurisdictions. States that recognize a mistake of fact as to consent generally have done so by legislation. Some State statutes expressly require a showing of a defendant’s intent as to nonconsent. Alaska, for example, requires proof of a culpable state of mind. “Lack of consent is a ‘surrounding circumstance’ which under the Revised Code, requires a complementary mental state as well as conduct to constitute a crime.” Reynolds v. State, 664 P.2d 621, 625 (Alaska 1983). Because no specific mental state is mentioned in Alaska’s statute governing sexual assault in the first degree, the State “must prove that the defendant acted ‘recklessly’ regarding his putative victim’s lack of consent.” Id. So understood, an honest and reasonable mistake as to consent would negate the culpability requirement attached to the element of consent. See Colo. Rev. Stat. § 18-3-402(1) (1999) (“Any actor who knowingly inflicts sexual intrusion or sexual penetration on a victim commits sexual assault . . .”); … Tex. Penal Code § 22.021(a)(1)(A)(i) (2001) (“A person commits an offense if the person . . . intentionally or knowingly . . . causes the penetration of the anus or female sexual organ of another person by any means, without that person’s consent”).

The New Jersey statute defines sexual assault (rape) as “any act of sexual penetration engaged in by the defendant without the affirmative and freely-given permission of the victim to the specific act of penetration.” In re M.T.S., supra at 444. A defendant, by claiming that he had permission to engage in sexual intercourse, places his state of mind directly in issue. The jury must then determine “whether the defendant’s belief that the alleged victim had freely given affirmative permission was reasonable.” Id. at 448.

The mistake of fact “defense” has been recognized by judicial decision in some States. In 1975, the Supreme Court of California became the first State court to recognize a mistake of fact defense in rape cases. See People v. Mayberry, 15 Cal. 3d 143 (1975) (en banc). Although the court did not make a specific determination that intent was required as to the element of consent, it did conclude that, “if a defendant entertains a reasonable and bona fide belief that a prosecutrix [sic] voluntarily consented . . . to engage in sexual intercourse, it is apparent he does not possess the wrongful intent that is a prerequisite under Penal Code section 20 to a conviction of . . . rape by means of force or threat.” Id. at 153. Thus, the intent required is an intent to engage in nonconsensual sexual intercourse, and the State must prove that a defendant intentionally engaged in intercourse and was at least negligent regarding consent.5

Other State courts have employed a variety of different constructions in adopting the mistake of fact defense. See State v. Smith, 210 Conn. 132, 142, 554 A.2d 713 (1989) (“We arrive at that result, however, not on the basis of our penal code provision relating to a mistake of fact . . . but on the ground that whether a complainant should be found to have consented depends upon how her behavior would have been viewed by a reasonable person under the surrounding circumstances”); State v. Koonce, 731 S.W.2d 431, 437 n.2 (Mo. Ct. App. 1987) (construing rape statute to require defendant acted at least recklessly as to consent).

However, the minority of States sharing our view is significant. See People v. Witte, 115 Ill. App. 3d 20, 26 n.2 (1983) (“whether the defendant intended to commit the offenses without the victim’s consent is not relevant, the critical question being whether the victim did, in fact, consent. This involves her mental state, not the defendant’s”); State v. Christensen, 414 N.W.2d 843, 845-846 (Iowa 1987) (“Defendant’s awareness of a putative sexual abuse victim’s lack of consent is not an element of third-degree sexual abuse. . . . It follows from this premise that a defendant’s mistake of fact as to that consent would not negate an element of the offense”); State v. Reed, 479 A.2d 1291, 1296 (Me. 1984) (“The legislature, by carefully defining the sex offenses in the criminal code, and by making no reference to a culpable state of mind for rape, clearly indicated that rape compelled by force or threat requires no culpable state of mind”) …. See also People v. Hale, 142 Mich. App. 451, 453, 370 N.W.2d 382 (1985); State v. Elmore, 54 Wn. App. 54, 56 (1989); Brown v. State, 59 Wis. 2d 200, 213-214, (1973). This case does not persuade us that we should recognize a mistake of fact as to consent as a defense to rape in all cases. See Commonwealth v. Ascolillo, supra at 463. Whether such a defense might, in some circumstances, be appropriate is a difficult question that we may consider on a future case where a defendant’s claim of reasonable mistake of fact is at least arguably supported by the evidence. This is not such a case. Judgments affirmed.

State in Interest of M.T.S.

609 A.2d 1266 (N.J. 1992)

HANDLER, J.

Under New Jersey law a person who commits an act of sexual penetration using physical force or coercion is guilty of second-degree sexual assault. The sexual assault statute does not define the words “physical force.” The question posed by this appeal is whether the element of “physical force” is met simply by an act of non-consensual penetration involving no more force than necessary to accomplish that result.

That issue is presented in the context of what is often referred to as “acquaintance rape.” The record in the case discloses that the juvenile, a seventeen-year-old boy, engaged in consensual kissing and heavy petting with a fifteen-year-old girl and thereafter engaged in actual sexual penetration of the girl to which she had not consented. There was no evidence or suggestion that the juvenile used any unusual or extra force or threats to accomplish the act of penetration.

The trial court determined that the juvenile was delinquent for committing a sexual assault. The Appellate Division reversed the disposition of delinquency, concluding that non-consensual penetration does not constitute sexual assault unless it is accompanied by some level of force more than that necessary to accomplish the penetration. We granted the State’s petition for certification.

I

… On Monday, May 21, 1990, fifteen-year-old C.G. was living with her mother, her three siblings, and several other people, including M.T.S. and his girlfriend. A total of ten people resided in the three-bedroom town-home at the time of the incident. M.T.S., then age seventeen, was temporarily residing at the home with the permission of the C.G.’s mother; he slept downstairs on a couch. C.G. had her own room on the second floor. At approximately 11:30 p.m. on May 21, C.G. went upstairs to sleep after having watched television with her mother, M.T.S., and his girlfriend. When C.G. went to bed, she was wearing underpants, a bra, shorts, and a shirt. At trial, C.G. and M.T.S. offered very different accounts concerning the nature of their relationship and the events that occurred after C.G. had gone upstairs. The trial court did not credit fully either teenager’s testimony.

C.G. stated that earlier in the day, M.T.S. had told her three or four times that he “was going to make a surprise visit up in [her] bedroom.” She said that she had not taken M.T.S. seriously and considered his comments a joke because he frequently teased her. She testified that M.T.S. had attempted to kiss her on numerous other occasions and at least once had attempted to put his hands inside of her pants, but that she had rejected all of his previous advances.

C.G. testified that on May 22, at approximately 1:30 a.m., she awoke to use the bathroom. As she was getting out of bed, she said, she saw M.T.S., fully clothed, standing in her doorway. According to C.G., M.T.S. then said that “he was going to tease [her] a little bit.” C.G. testified that she “didn’t think anything of it”; she walked past him, used the bathroom, and then returned to bed, falling into a “heavy” sleep within fifteen minutes. The next event C.G. claimed to recall of that morning was waking up with M.T.S. on top of her, her underpants and shorts removed. She said “his penis was into [her] vagina.” As soon as C.G. realized what had happened, she said, she immediately slapped M.T.S. once in the face, then “told him to get off [her], and get out.” She did not scream or cry out. She testified that M.T.S. complied in less than one minute after being struck; according to C.G., “he jumped right off of [her].”….

 C.G. said that after M.T.S. left the room, she “fell asleep crying” because “[she] couldn’t believe that he did what he did to [her].” She explained that she did not immediately tell her mother or anyone else in the house of the events of that morning because she was “scared and in shock.” According to C.G., M.T.S. engaged in intercourse with her “without [her] wanting it or telling him to come up [to her bedroom].” By her own account, C.G. was not otherwise harmed by M.T.S.

At about 7:00 a.m., C.G. went downstairs and told her mother about her encounter with M.T.S. earlier in the morning and said that they would have to “get [him] out of the house.” While M.T.S. was out on an errand, C.G.’s mother gathered his clothes and put them outside in his car; when he returned, he was told that “[he] better not even get near the house.” C.G. and her mother then filed a complaint with the police.

According to M.T.S., he and C.G. had been good friends for a long time, and their relationship “kept leading on to more and more.” He had been living at C.G.’s home for about five days before the incident occurred; he testified that during the three days preceding the incident they had been “kissing and necking” and had discussed having sexual intercourse. The first time M.T.S. kissed C.G., he said, she “didn’t want him to, but she did after that.” He said C.G. repeatedly had encouraged him to “make a surprise visit up in her room.”

M.T.S. testified that at exactly 1:15 a.m. on May 22, he entered C.G.’s bedroom as she was walking to the bathroom. He said C.G. soon returned from the bathroom, and the two began “kissing and all,” eventually moving to the bed. Once they were in bed, he said, they undressed each other and continued to kiss and touch for about five minutes. M.T.S. and C.G. proceeded to engage in sexual intercourse. According to M.T.S., who was on top of C.G., he “stuck it in” and “did it [thrust] three times, and then the fourth time [he] stuck it in, that’s when [she] pulled [him] off of her.” M.T.S. said that as C.G. pushed him off, she said “stop, get off,” and he “hopped off right away.”

According to M.T.S., after about one minute, he asked C.G. what was wrong; she replied with a back-hand to his face. He recalled asking C.G. what was wrong a second time, and her replying, “how can you take advantage of me or something like that.” M.T.S. said that he proceeded to get dressed and told C.G. to calm down, but that she then told him to get away from her and began to cry. Before leaving the room, he told C.G., “I’m leaving . . . I’m going with my real girlfriend, don’t talk to me . . . I don’t want nothing to do with you or anything, stay out of my life . . . don’t tell anybody about this . . . it would just screw everything up.” He then walked downstairs and went to sleep.

On May 23, 1990, M.T.S. was charged with conduct that if engaged in by an adult would constitute second-degree sexual assault of the victim, contrary to N.J.S.A. 2C:14-2c(1)….

Following a two-day trial on the sexual assault charge, M.T.S. was adjudicated delinquent. After reviewing the testimony, the court concluded that the victim had consented to a session of kissing and heavy petting with M.T.S. The trial court did not find that C.G. had been sleeping at the time of penetration, but nevertheless found that she had not consented to the actual sexual act. Accordingly, the court concluded that the State had proven second-degree sexual assault beyond a reasonable doubt. On appeal, following the imposition of suspended sentences on the sexual assault and the other remaining charges, the Appellate Division determined that the absence of force beyond that involved in the act of sexual penetration precluded a finding of second-degree sexual assault. It therefore reversed the juvenile’s adjudication of delinquency for that offense.

II

The New Jersey Code of Criminal Justice, N.J.S.A. 2C:14-2c(1), defines “sexual assault” [in relevant part as follows: “c. An actor is guilty of sexual assault if he commits an act of sexual penetration with another person under any one of the following circumstances: (1) The actor uses physical force or coercion, but the victim does not sustain severe personal injury ….”] An unconstrained reading of the statutory language indicates that both the act of “sexual penetration” and the use of “physical force or coercion” are separate and distinct elements of the offense. See Medical Soc. v. Department of Law & Pub. Safety, 120 N.J. 18, 26, 575 A.2d 1348 (1990) (declaring that no part of a statute should be considered meaningless or superfluous). Neither the definitions section of N.J.S.A. 2C:14-1 to -8, nor the remainder of the Code of Criminal Justice provides assistance in interpreting the words “physical force.” The initial inquiry is, therefore, whether the statutory words are unambiguous on their face and can be understood and applied in accordance with their plain meaning. The answer to that inquiry is revealed by the conflicting decisions of the lower courts and the arguments of the opposing parties. The trial court held that “physical force” had been established by the sexual penetration of the victim without her consent. The Appellate Division believed that the statute requires some amount of force more than that necessary to accomplish penetration.

 The parties offer two alternative understandings of the concept of “physical force” as it is used in the statute. The State would read “physical force” to entail any amount of sexual touching brought about involuntarily. A showing of sexual penetration coupled with a lack of consent would satisfy the elements of the statute. The Public Defender urges an interpretation of “physical force” to mean force “used to overcome lack of consent.” That definition equates force with violence and leads to the conclusion that sexual assault requires the application of some amount of force in addition to the act of penetration….

[A]s evidenced by the disagreements among the lower courts and the parties, and the variety of possible usages, the statutory words “physical force” do not evoke a single meaning that is obvious and plain. Hence, we must pursue avenues of construction in order to ascertain the meaning of that statutory language. Those avenues are well charted. When a statute is open to conflicting interpretations, the court seeks the underlying intent of the legislature, relying on legislative history and the contemporary context of the statute. Monmouth County v. Wissell, 68 N.J. 35, 41-42 (1975). With respect to a law, like the sexual assault statute, that “alters or amends the previous law or creates or abolishes types of actions, it is important, in discovering the legislative intent, to ascertain the old law, the mischief and the proposed remedy.” Grobart v. Grobart, 5 N.J. 161, 166 (1950)…. We also remain mindful of the basic tenet of statutory construction that penal statutes are to be strictly construed in favor of the accused. Nevertheless, the construction must conform to the intent of the Legislature.

The provisions proscribing sexual offenses … were written against almost two hundred years of rape law in New Jersey. The origin of the rape statute that the current statutory offense of sexual assault replaced can be traced to the English common law. Under the common law, rape was defined as “carnal knowledge of a woman against her will.” … American jurisdictions generally adopted the English view, but over time states added the requirement that the carnal knowledge have been forcible, apparently in order to prove that the act was against the victim’s will. As of 1796, New Jersey statutory law defined rape as “carnal knowledge of a woman, forcibly and against her will.” Crimes Act of March 18, 1796 § 8. Those three elements of rape—carnal knowledge, forcibly, and against her will—remained the essential elements of the crime until 1979….

Under traditional rape law, in order to prove that a rape had occurred, the state had to show both that force had been used and that the penetration had been against the woman’s will. … “Thus, the perpetrator’s use of force became criminal only if the victim’s state of mind met the statutory requirement. The perpetrator could use all the force imaginable and no crime would be committed if the state could not prove additionally that the victim did not consent.” National Institute of Law Enforcement and Criminal Justice, Forcible Rape—An Analysis of Legal Issues 5 (March 1978) Although the terms “non-consent” and “against her will” were often treated as equivalent, under the traditional definition of rape, both formulations squarely placed on the victim the burden of proof and of action. Effectively, a woman who was above the age of consent had actively and affirmatively to withdraw that consent for the intercourse to be against her will. As a Delaware court stated, “If sexual intercourse is obtained by milder means, or with the consent or silent submission of the female, it cannot constitute the crime of rape.” State v. Brown, 83 A. 1083, 1084 (O.T. 1912).

The presence or absence of consent often turned on credibility. To demonstrate that the victim had not consented to the intercourse, and also that sufficient force had been used to accomplish the rape, the state had to prove that the victim had resisted. According to the oft-quoted Lord Hale, to be deemed a credible witness, a woman had to be of good fame, disclose the injury immediately, suffer signs of injury, and cry out for help. 1 Matthew Hale, History of the Pleas of the Crown 633 (1st ed. 1847). … Evidence of resistance was viewed as a solution to the credibility problem…

The resistance requirement had a profound effect on the kind of conduct that could be deemed criminal and on the type of evidence needed to establish the crime. Courts assumed that any woman who was forced to have intercourse against her will necessarily would resist to the extent of her ability. In many jurisdictions the requirement was that the woman have resisted to the utmost. “Rape is not committed unless the woman oppose the man to the utmost limit of her power.” People v. Carey, 223 N.Y. 519 (N.Y.1918). “[A] mere tactical surrender in the face of an assumed superior physical force is not enough. Where the penalty for the defendant may be supreme, so must resistance be unto the uttermost.” Moss v. State, 208 Miss. 531 (1950).

… In State v. Harris, 70 N.J. Super. 9, 174 A.2d 645 (1961), the Appellate Division recognized that the “to the uttermost” test was obsolete. Id. at 16, 174 A.2d 645. “The fact that a victim finally submits does not necessarily imply that she consented. Submission to a compelling force, or as a result of being put in fear, is not consent.” Id. at 16-17. Nonetheless, the “resistance” requirement remained an essential feature of New Jersey rape law. Thus, in 1965 the Appellate Division stated: “[W]e have rejected the former test that a woman must resist ‘to the uttermost.’ We only require that she resist as much as she possibly can under the circumstances.” State v. Terry, 89 N.J. Super. 445….

The resistance requirement had another untoward influence on traditional rape law. Resistance was necessary not only to prove non-consent but also to demonstrate that the force used by the defendant had been sufficient to overcome the victim’s will. The amount of force used by the defendant was assessed in relation to the resistance of the victim. See, e.g., Tex. Penal Code Ann. § 21.02 (1974) (repealed 1983) (stating that “the amount of force necessary to negate consent is a relative matter to be judged under all the circumstances, the most important of which is the resistance of the female”). … Only if she resisted, causing him to use more force than was necessary to achieve penetration, would his conduct be criminalized….

To refute the misguided belief that rape was not real unless the victim fought back, reformers emphasized empirical research indicating that women who resisted forcible intercourse often suffered far more serious injury as a result. Menachem Amir, Patterns in Forcible Rape, 164-65, 169-171 (1971); Definition of Forcible Rape, supra, 61 Va. L. Rev. at 1506. That research discredited the assumption that resistance to the utmost or to the best of a woman’s ability was the most reasonable or rational response to a rape.

… Reformers criticized the conception of rape as a distinctly sexual crime rather than a crime of violence. They emphasized that rape had its legal origins in laws designed to protect the property rights of men to their wives and daughters. Susan Brownmiller, Against Our Will: Men, Women, and Rape 377 (1975); Acquaintance Rape: The Hidden Crime 318 (Andrea Parrot & Laurie Bechhofer, eds. 1991). …

Critics of rape law agreed that the focus of the crime should be shifted from the victim’s behavior to the defendant’s conduct, and particularly to its forceful and assaultive, rather than sexual, character. Reformers also shared the goals of facilitating rape prosecutions and of sparing victims much of the degradation involved in bringing and trying a charge of rape. There were, however, differences over the best way to redefine the crime. Some reformers advocated a standard that defined rape as unconsented-to sexual intercourse; others urged the elimination of any reference to consent from the definition of rape. Nonetheless, all proponents of reform shared a central premise: that the burden of showing non-consent should not fall on the victim of the crime.…

Similarly, with regard to force, rape law reform sought to give independent significance to the forceful or assaultive conduct of the defendant and to avoid a definition of force that depended on the reaction of the victim. Traditional interpretations of force were strongly criticized for failing to acknowledge that force may be understood simply as the invasion of “bodily integrity.” Susan Estrich, Rape, 95 Yale L.J. 1087, 1105, (1986). In urging that the “resistance” requirement be abandoned, reformers sought to break the connection between force and resistance.

III

… Since the 1978 reform, the Code has referred to the crime that was once known as “rape” as “sexual assault.” The crime now requires “penetration,” not “sexual intercourse.” It requires “force” or “coercion,” not “submission” or “resistance.” It makes no reference to the victim’s state of mind or attitude, or conduct in response to the assault. It eliminates the spousal exception based on implied consent. It emphasizes the assaultive character of the offense by defining sexual penetration to encompass a wide range of sexual contacts, going well beyond traditional “carnal knowledge.” Consistent with the assaultive character, as opposed to the traditional sexual character, of the offense, the statute also renders the crime gender-neutral: both males and females can be actors or victims.

The reform statute defines sexual assault as penetration accomplished by the use of “physical force” or “coercion,” but it does not define either “physical force” or “coercion” or enumerate examples of evidence that would establish those elements…. The task of defining “physical force” therefore was left to the courts….

The Legislature’s concept of sexual assault and the role of force was significantly colored by its understanding of the law of assault and battery. As a general matter, criminal battery is defined as “the unlawful application of force to the person of another.” 2 Wayne LaFave & Austin Scott, Criminal Law, § 7.15 at 301 (1986). The application of force is criminal when it results in either (a) a physical injury or (b) an offensive touching. Id. at 301-02. Any “unauthorized touching of another [is] a battery.” Perna v. Pirozzi, 92 N.J. 446 (1983)….

The understanding of sexual assault as a criminal battery, albeit one with especially serious consequences, follows necessarily from the Legislature’s decision to eliminate nonconsent and resistance from the substantive definition of the offense. Under the new law, the victim no longer is required to resist and therefore need not have said or done anything in order for the sexual penetration to be unlawful. The alleged victim is not put on trial, and his or her responsive or defensive behavior is rendered immaterial….

We conclude, therefore, that any act of sexual penetration engaged in by the defendant without the affirmative and freely-given permission of the victim to the specific act of penetration constitutes the offense of sexual assault. Therefore, physical force in excess of that inherent in the act of sexual penetration is not required for such penetration to be unlawful. The definition of “physical force” is satisfied under N.J.S.A. 2C:14-2c(1) if the defendant applies any amount of force against another person in the absence of what a reasonable person would believe to be affirmative and freely-given permission to the act of sexual penetration.

Under the reformed statute, permission to engage in sexual penetration must be affirmative and it must be given freely, but that permission may be inferred either from acts or statements reasonably viewed in light of the surrounding circumstances…. Persons need not, of course, expressly announce their consent to engage in intercourse for there to be affirmative permission. Permission to engage in an act of sexual penetration can be and indeed often is indicated through physical actions rather than words. Permission is demonstrated when the evidence, in whatever form, is sufficient to demonstrate that a reasonable person would have believed that the alleged victim had affirmatively and freely given authorization to the act.

… The Legislature recast the law of rape as sexual assault to bring that area of law in line with the expectation of privacy and bodily control that long has characterized most of our private and public law. See Hennessey v. Coastal Eagle Paint Oil Co., 129 N.J. 81, 94-96 (1992) (recognizing importance of constitutional and common-law protection of personal privacy); id. at 106, 609 A.2d 11 (Pollock, J., concurring) (emphasizing that common-law right of privacy protects individual self-determination and autonomy). In interpreting “physical force” to include any touching that occurs without permission we seek to respect that goal….

IV

… In the context of a sexual penetration not involving unusual or added “physical force,” the inclusion of “permission” as an aspect of “physical force” effectively subsumes and obviates any defense based on consent. See N.J.S.A. 2C:2-10c(3). The definition of “permission” serves to define the “consent” that otherwise might allow a defendant to avoid criminal liability. Because “physical force” as an element of sexual assault in this context requires the absence of affirmative and freely-given permission, the “consent” necessary to negate such “physical force” under a defense based on consent would require the presence of such affirmative and freely-given permission. Any lesser form of consent would render the sexual penetration unlawful and cannot constitute a defense.

In this case, the Appellate Division concluded that non-consensual penetration accomplished with no additional physical force or coercion is not criminalized under the sexual assault statute. It acknowledged that its conclusion was “anomalous” because it recognized that “a woman has every right to end [physically intimate] activity without sexual penetration.” Ibid. Thus, it added to its holding that “[e]ven the force of penetration might . . . be sufficient if it is shown to be employed to overcome the victim’s unequivocal expressed desire to limit the encounter.”

The Appellate Division was correct in recognizing that a woman’s right to end intimate activity without penetration is a protectable right the violation of which can be a criminal offense. However, it misperceived the purpose of the statute in believing that the only way that right can be protected is by the woman’s unequivocally-expressed desire to end the activity. The effect of that requirement would be to import into the sexual assault statute the notion that an assault occurs only if the victim’s will is overcome, and thus to reintroduce the requirement of non-consent and victim-resistance as a constituent material element of the crime. Under the reformed statute, a person’s failure to protest or resist cannot be considered or used as justification for bodily invasion.

We acknowledge that cases such as this are inherently fact sensitive and depend on the reasoned judgment and common sense of judges and juries. The trial court concluded that the victim had not expressed consent to the act of intercourse, either through her words or actions. We conclude that the record provides reasonable support for the trial court’s disposition.

Accordingly, we reverse the judgment of the Appellate Division and reinstate the disposition of juvenile delinquency for the commission of second-degree sexual assault.

A person is guilty of rape in the first degree when he or she engages in sexual intercourse with another person:

1. By forcible compulsion;  or

2. Who is incapable of consent by reason of being physically helpless;  or

3. Who is less than eleven years old;  or

4. Who is less than thirteen years old and the actor is eighteen years old or more.

Rape in the first degree is a class B felony [up to 25 years in prison].

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.

Rape in the third degree is a class E felony [up to 4 years in prison].

Definition of consent (§ 130.05): ... the victim clearly expressed that he or she did not consent to engage in such act, and a reasonable person in the actor's situation would have understood such person's words and acts as an expression of lack of consent to such act under all the circumstances.

University of California system: “Affirmative consent” means affirmative, conscious, and voluntary agreement to engage in sexual activity. It is the responsibility of each person involved in the sexual activity to ensure that he or she has the affirmative consent of the other or others to engage in the sexual activity. Lack of protest or resistance does not mean consent, nor does silence mean consent. Affirmative consent must be ongoing throughout a sexual activity and can be revoked at any time. The existence of a dating relationship between the persons involved, or the fact of past sexual relations between them, should never by itself be assumed to be an indicator of consent.

University of Denver: Consent is a voluntary mutual agreement. It's informed, sober, honest, clear, and involves the word "yes" from each person involved. That means there's discussion and clear communication. It is not consent if your partner is: Silent or not responding; Avoiding the question; Using uncertain statements such as, "I'm not sure if I'm ready," "I don’t know if I want to,” “I think I've had too much to drink,” or “I'm scared.”

261. (a) Rape is an act of sexual intercourse accomplished under any of the following circumstances:

(1) If a person who is not the spouse of the person committing the act is incapable, because of a mental disorder or developmental or physical disability, of giving legal consent, and this is known or reasonably should be known to the person committing the act. [T]he prosecuting attorney shall prove, as an element of the crime, that a mental disorder or developmental or physical disability rendered the alleged victim incapable of giving consent. 

(2) If it is accomplished against a person’s will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the person or another.

(3) If a person is prevented from resisting by an intoxicating or anesthetic substance, or a controlled substance, and this condition was known, or reasonably should have been known by the accused.

(4) If a person is at the time unconscious of the nature of the act, and this is known to the accused. As used in this paragraph, “unconscious of the nature of the act” means incapable of resisting because the victim meets any one of the following conditions:

(A) Was unconscious or asleep.

(B) Was not aware, knowing, perceiving, or cognizant that the act occurred.

(C) Was not aware, knowing, perceiving, or cognizant of the essential characteristics of the act due to the perpetrator’s fraud in fact.

(D) Was not aware, knowing, perceiving, or cognizant of the essential characteristics of the act due to the perpetrator’s fraudulent representation that the sexual penetration served a professional purpose when it served no professional purpose.

...

(b) For purposes of this section, the following definitions apply:

(1) “Duress” means a direct or implied threat of force, violence, danger, or retribution sufficient to coerce a reasonable person of ordinary susceptibilities to perform an act which otherwise would not have been performed, or acquiesce in an act to which one otherwise would not have submitted. The total circumstances, including the age of the victim, and the victim’s relationship to the defendant, are factors to consider in appraising the existence of duress.

(2) “Menace” means any threat, declaration, or act that shows an intention to inflict an injury upon another.

People v. Giardino

98 Cal. Rptr. 2d 315 (Cal. 4^th App. 2000)

McKINSTER, J.

… In an 11-count information, the defendant was charged with committing rape by intoxication (Pen. Code, § 261, subd. (a)(3)) in counts 1, 2, and 3; with committing oral copulation by intoxication (§ 288a, subd. (i)) in counts 4 and 5; with committing oral copulation with a minor (§ 288a, subd. (b)(1)) in counts 6 and 7; with committing unlawful sexual intercourse (§ 261.5) in counts 8, 9 and 10; and with molesting a child (§ 647.6) in count 11. The jury found him guilty as charged in counts 2 through 7 and 9 through 11, but not guilty as to counts 1 and 8. In addition to a prison term of 13 years and 2 restitution fines, the defendant was ordered to pay restitution to the victim in the sum of $ 7,359.

The defendant contends that the convictions on counts 2 through 5 must be reversed because the trial court erred (1) by refusing to instruct the jury that lack of consent is an element of the charges of rape by intoxication and oral copulation by intoxication, (2) by failing to instruct the jury concerning the meaning of “prevented from resisting,” and (3) by failing to instruct the jury concerning the effect of an honestly and reasonably held but mistaken belief in the victim’s ability to give legal consent. He contends that those same counts must also be reversed because there is insufficient evidence to support a finding that the victim was unable to physically resist….

A. Lack of Actual Consent Is Not an Element of Rape by Intoxication.

 The defendant asked the trial court to give a “consent instruction” regarding the charges of rape by intoxication and oral copulation by intoxication. In his oral request, the defendant did not describe the requested instruction in any detail, but the trial court interpreted him to be asking that the jury be instructed either that lack of consent was an element of those crimes or that consent is a defense. The trial court refused to do so.

Reasoning that lack of consent is an element of rape, or conversely that consent is a defense, the defendant contends that the trial court should have defined consent in accordance with section 261.6 and instructed the jury that lack of consent is an element of the offenses of rape by intoxication and oral copulation by intoxication. He is mistaken.

In the context of rape and other sexual assaults, “consent” is defined as the “positive cooperation in act or attitude pursuant to an exercise of free will.” (§ 261.6.) To give consent, a “person must act freely and voluntarily and have knowledge of the nature of the act or transaction involved.” (Ibid.; accord, CALJIC No. 1.23.1.) In short, that definition describes consent that is actually and freely given without any misapprehension of material fact. We shall refer to this as “actual consent.” [In a footnote, the court added: Actual consent must be distinguished from submission. For instance, a victim’s decision to submit to an attacker’s sexual demands out of fear of bodily injury is not consent … because the decision is not freely and voluntarily made. A selection by the victim of the lesser of two evils—rape versus the violence threatened by the attacker if the victim resists—is hardly an exercise of free will.]

 By itself, the existence of actual consent is not sufficient to establish a defense to a charge of rape. That the supposed victim actually consented to sexual intercourse disproves rape only if he or she had “sufficient capacity” to give that consent. See People v. Mayberry (1975) 15 Cal. 3d 143, 154. For example, if the victim is so unsound of mind that he or she is incapable of giving legal consent, the fact that he or she may have given actual consent does not prevent a conviction of rape…. Hence, the consent defense fails if the victim either did not actually consent or lacked the capacity to give legally cognizable consent.

The distinction between actual consent and legal consent is further illustrated by the statutory definition of rape. Some of the various means of committing rape specified in the subdivisions of section 261 deal with the lack of the victim’s actual consent while others deal with the victim’s lack of capacity, i.e., with the lack of legal consent.

In the context of rape, “against the victim’s will” is synonymous with “without the victim’s consent.” People v. Cicero (1984) 157 Cal. App. 3d 465, 480.Therefore, by specifically referring to intercourse accomplished against the victim’s will, subdivisions (a)(2) (force or duress), (a)(6) (threat of retaliation), and (a)(7) (threat of detention or deportation) of section 261 describe instances in which the victim has not actually consented. The same is true when the victim is not aware of the nature of the act (id., subd. (a)(4)(C)) or has been deceived into believing that the defendant is the victim’s spouse (id., subd. (a)(5)). In those cases, there is no actual consent because the victim lacks “knowledge of the nature of the act or transaction ….” (§ 261.6.) By contrast, subdivision (a)(1) of section 261 proscribes sexual intercourse with a person who lacks the capacity to give legal consent due to a mental disorder or a developmental or physical disability.

That distinction determines the instructions that are relevant to the charge. A charge that the defendant accomplished the act of sexual intercourse against the will of the victim, together with evidence that places in dispute the willingness of the victim to engage in intercourse, entitles the defendant to an instruction that the act was not criminal if it was committed with the victim’s actual consent. But if the charge is that the victim lacked the capacity to give legal consent (such as § 261, subd. (a)(1)), then actual consent is irrelevant, and the jury instructions need not touch on that issue.

Unlike subdivisions (a)(2), (a)(6), and (a)(7) of section 261, section 261(a)(3) is not phrased in terms of the victim’s “will.” Nor does it employ the words “legal consent,” as does subdivision (a)(1). Instead, section 261(a)(3) speaks in terms of the victim being “prevented from resisting ….” Does that subdivision pertain to the victim’s actual consent or to the victim’s ability to give legal consent?

 Although the language of section 261(a)(3) suggests that the victim’s actual consent is at issue, our Supreme Court long ago rejected that notion. In discussing the elements of rape of a mentally incompetent person, the court said: “In this species of rape neither force upon the part of the man, nor resistance upon the part of the woman, forms an element of the crime. If, by reason of any mental weakness, she is incapable of legally consenting, resistance is not expected any more than it is in the case of one who has been drugged to unconsciousness, or robbed of judgment by intoxicants.” People v. Griffin, 117 Cal. at 585, italics added.

This emphasis on the effect of the intoxicants on the victim’s powers of judgment rather than the victim’s powers of resistance is consistent with the Model Penal Code, which provides that actual consent is not legal consent if “it is given by a person who by reason of youth, mental disease or defect, or intoxication is manifestly unable or known by the actor to be unable to make a reasonable judgment as to the nature or harmfulness of the conduct ….” Model Pen. Code, § 2.11(3)(b).

We conclude that, just as subdivision (a)(1) of section 261 proscribes sexual intercourse with a person who is not capable of giving legal consent because of a mental disorder or physical disability, section 261(a)(3) proscribes sexual intercourse with a person who is not capable of giving legal consent because of intoxication. In both cases, the issue is not whether the victim actually consented to sexual intercourse, but whether he or she was capable of exercising the degree of judgment a person must have in order to give legally cognizable consent.

In reaching that conclusion, we reject the defendant’s contrary, more literal construction of section 261(a)(3). He notes that, prior to a 1980 amendment, the rape-by-force subdivision of section 261 expressly required evidence of resistance by the victim…. Resistance was required to provide “an objective indicator of nonconsent,” corroborating the victim’s testimony that the act of intercourse was undertaken against the victim’s will. People v. Barnes (1986) 42 Cal. 3d 284, 299. In accordance with that purpose, the degree of resistance required “was only that which would reasonably manifest refusal to consent to the act of sexual intercourse.” Id. at 297. The defendant asserts that, with that understanding of “resistance,” it follows that “prevented from resisting” in section 261(a)(3) means that the victim is so intoxicated that he or she was physically incapable of manifesting a refusal to actually consent.

 That construction is untenable. The case law interpreting the former resistance requirement demonstrates that the exertion of physical force by the victim against the defendant was not required; verbal protestations alone were sufficient to establish resistance. See, e.g., People v. Peckham (1965) 232 Cal. App. 2d 163, 165-168 …. Therefore, to be intoxicated to a degree that rendered the victim physically unable to resist would mean that the victim was unable to even speak. The line between that extreme level of intoxication and absolute unconsciousness is very thin. There is no indication in our decisional law that section 261(a)(3) has ever been interpreted to apply only to such severely incapacitated victims.

For instance, the evidence in People v. Ing, (1967) 65 Cal. 2d 603, was that the defendant, a medical doctor, had administered injections to the victim on several occasions; that after receiving the shots, the victim felt “‘light-headed’” and “‘just didn’t care about anything,’” id. at p. 607; that the doctor would then have intercourse with her; and that she would not have engaged in intercourse with him had she not been under the influence of the drugs. There was apparently no evidence that the victim was unable to speak or otherwise communicate a refusal to consent; indeed, the evidence suggested that the victim actually consented to intercourse. Nevertheless, the court summarily rejected the defendant’s contention that the evidence was insufficient to support his rape convictions. Id. at 612….

Because section 261(a)(3) proscribes sexual intercourse with a person who is not capable of giving legal consent because of intoxication, the lack of actual consent is not an element of the crime. Accordingly, the trial court properly denied the defendant’s request for an instruction to the contrary.

1. The Trial Court Prejudicially Erred by Failing to Explain to the Jury the Meaning of “Prevented from Resisting.”

 … [T]he jury was instructed that one of the elements of rape by intoxication was that “the alleged victim was prevented from resisting the act by an intoxicating substance ….” In an apparent reference to that instruction, after several hours of deliberation the jury asked the court for the legal definition of “resistance.” …

… As demonstrated by its request for a definition of “resistance,” the jury was having difficulty grasping the import of the statutory language, and understandably so…. As we explained in part A of this opinion, although the statutory language suggests that the factual issue is whether the intoxicating substance prevented the victim from physically resisting, the correct interpretation focuses on whether the victim’s level of intoxication prevented him or her from exercising judgment.

The defendant was entitled to have that concept correctly explained, especially after the jury requested clarification of that very subject. In particular, the jury should have been instructed that its task was to determine whether, as a result of her level of intoxication, the victim lacked the legal capacity to give “consent” as that term is defined in section 261.6. Legal capacity is the ability to exercise reasonable judgment, i.e., to understand and weigh not only the physical nature of the act, but also its moral character and probable consequences.

 In deciding whether the level of the victim’s intoxication deprived the victim of legal capacity, the jury shall consider all the circumstances, including the victim’s age and maturity. It is not enough that the victim was intoxicated to some degree, or that the intoxication reduced the victim’s sexual inhibitions. “Impaired mentality may exist and yet the individual may be able to exercise reasonable judgment with respect to the particular matter presented to his or her mind.” People v. Peery, 26 Cal. App. at 145. Instead, the level of intoxication and the resulting mental impairment must have been so great that the victim could no longer exercise reasonable judgment concerning that issue. [A footnote added: In one sense, a minor is always legally incapable of giving consent. But here the defendant was being prosecuted not only for unlawful sexual intercourse but also for the greater crime of rape by intoxication. In that event, the jury must set aside the statutory presumption that a person under 18 years of age is incapable of giving legal consent and must determine whether the elements of the more serious crime are met.]

 The trial court’s response to the jury’s inquiry did not help the jury to focus on the victim’s ability to exercise that judgment. To the contrary, by instructing the jury “to determine the everyday meaning of resistance,” the trial court erroneously implied that the meaning of the statute could be deciphered by giving the language of the statute its common meaning, and thus that the issue was the victim’s ability to resist….

As with any other instructional error, a “violation of section 1138 does not warrant reversal unless prejudice is shown.” People v. Beardslee, 53 Cal. 3d at 97. This error did prejudice the defendant because the evidence supports conflicting conclusions regarding the victim’s capacity.

Norliza G. lived with her mother and stepfather, the defendant. On December 27, 1996, Norliza’s friend, the victim, was spending the night at Norliza’s house. The victim had recently turned 16 years old.

The victim testified that, on December 27, she consumed a single drink of bourbon over ice that the defendant had poured for her. She variously described the drink as filling a 12-inch-tall glass “a little more than halfway,” and as being in a glass “a couple inches taller than a coke can” filled to a level “a little more than half of a coke can.” Norliza testified that the victim had two drinks, the first poured by the defendant and the second poured by the victim herself. Norliza estimated the total amount of bourbon consumed by the victim to be five ounces.

 According to the victim, she felt “woozy, very light headed” after consuming the alcohol. She slipped and fell while walking in the living room of the defendant’s house. Explaining that the victim had not had anything to eat, Norliza testified that the victim became “very giggly,” slurred her speech, could not walk straight, and generally “wasn’t altogether there.” Norliza saw her fall several times. Thomas Lyles testified that the victim appeared to be “kind of tipsy” and later was clumsy and obviously intoxicated. However, she was never so intoxicated that she was close to passing out, that she did not know what she was doing, or that she could not physically resist….

Lyles and the defendant said that they needed to get the victim out of the house to sober her up. She told the defendant that she did not want to leave the house, but he pulled her by the arm to his car. Lyles was with them…. The defendant stopped at a Motel 6 and rented a room. The victim stepped out of the car and the three of them climbed the stairs to the third floor motel room. Because she was so intoxicated, Lyles and the defendant were holding her by each arm to assist her up the stairs. Despite their help, as a result of the alcohol she tripped and fell on her knees near the top of the stairs. The defendant’s testimony characterized her as being “pretty giddy” at this point.

The victim testified that, once in the motel room, she walked into the bathroom, disrobed, and started to take a shower. The defendant pulled her out of the shower, saying “we don’t have time for this.” The victim began to get dressed….

The victim testified that after she had put on only the shirt, the defendant called to her. She came out of the bathroom to find both men naked. She began walking toward the door, and said, “I thought we were going home?” Lyles initially testified that she said something about wanting to go home, but later testified that she said, “Let’s get some liquor and have sex all night.” Similarly, the defendant testified that as soon as she had disrobed, she came out of the bathroom and climbed onto one of the beds.

The victim testified that, in response to her comment about going home, the defendant said, “No. I want you to ride Tom.” The defendant then pulled the victim by the arm on top of Lyles, who was lying down. While engaging in intercourse with Lyles, the defendant told her, “I want you to suck me.” She then began to orally copulate the defendant. The defendant then took the victim to the other bed and pulled her on top of him. While engaging in intercourse with the defendant, the victim orally copulated Lyles. She testified that, during this time, she “was conscious a little bit.” She felt like she “was just doing what they were saying to do.”

The defendant then turned the victim on her back and again engaged in intercourse. While in that position, the defendant took a bottle of Rush (amyl nitrite inhalant), poured some onto a washcloth, and put it over the victim’s face. She tried to hold her breath and push his hands away. Lyles recalled that she also told the defendant to stop applying it to her face.

 After the defendant ejaculated, he got up, started to dress, and instructed the victim to do the same. She was able to dress herself. As she was walking out, she still felt wobbly and light-headed, but she walked down the stairs without assistance. The defendant drove her to the corner of the block on which he lived and she walked the rest of the way to Norliza’s house….

The victim testified that she did not resist the defendant’s actions that night because he was a lot bigger than she was, because she was afraid of him, and because she was intoxicated. Lyles testified that she never said she did not want to have sex. She never said “no,” “don’t,” “stop,” or anything else indicating that she did not consent. To the contrary, she said that she wanted to engage in sexual relations. According to the defendant, it did not appear that the victim was so drunk that she did not know what she was doing or that “she was prevented mentally from resisting.”

The victim spent that night and the next day with Norliza at the defendant’s house. At no time did she display any animosity toward Lyles or the defendant or express any displeasure to the defendant concerning the events of the prior evening.

Whether the victim possessed sufficient mental capacity to give legal consent despite her intoxication is a question of fact for the jury. Here, there is evidence from which the jury could have concluded that the victim was not capable of exercising reasonable judgment, but there is also evidence from which it could have concluded that she was capable. She voiced her objections both to leaving the house and to inhaling the Rush. Although unsteady on her feet, the victim was able to walk and to undress herself. To Lyles and the defendant, she appeared in the motel to be sober enough to make decisions. Shortly after engaging in the intercourse found by the jury, she dressed herself and walked down several flights of stairs unassisted. When she returned to the house, she was not drunk. And the next day, after she presumably was utterly sober, she amicably associated with both the defendant and Lyles without indicating in any fashion that she would have made different decisions the night before had she not been under the influence of alcohol.

In short, there is substantial evidence both that the victim actually consented and that she possessed the legal capacity to do so. There being evidence from which the jury could have concluded that the victim was not so intoxicated that she was deprived of the ability to exercise reasonable judgment, the trial court’s erroneous failure to properly instruct the jury concerning the elements of section 261(a)(3) cannot be deemed to have been harmless. The conviction on counts 2 through 5 must be reversed.

C. An Honest and Reasonable but Mistaken Belief That a Sexual Partner Is Not Too Intoxicated to Give Legal Consent to Sexual Intercourse Is a Defense to Rape by Intoxication.

… The Supreme Court explained in People v. Hernandez that, unless the particular criminal statute at issue expresses a legislative intent or policy to impose strict criminal liability, a defendant’s conduct is punished as a crime only if it was committed with the necessary criminal intent. 61 Cal. 2d at 532-533. “There can be no dispute that a criminal intent exists when the perpetrator proceeds [to engage in sexual intercourse] with utter disregard of, or in the lack of grounds for, a belief that the female has reached the age of consent. But if he participates in a mutual act of sexual intercourse, believing his partner to be beyond the age of consent, with reasonable grounds for such belief, where is his criminal intent?” Id. at p. 534. The court concluded that a reasonable and “bona fide but erroneous belief that a valid consent to an act of sexual intercourse has been obtained” is a defense to a charge of statutory rape. Id. at p. 535.

The same reasoning controls when the sexual partner’s consent is invalid because of a lack of capacity due to brain damage rather than minority. (People v. Dolly (1966) 239 Cal. App. 2d 143, 146 [48 Cal. Rptr. 478] [dicta].) It also controls in this context, in which the lack of capacity is due to intoxication. As section 261(a)(3) itself provides, the accused is guilty only if the victim’s incapacitating level of intoxication “was known, or reasonably should have been known by the accused.” An honest and reasonable but mistaken belief that a sexual partner is not too intoxicated to give legal consent to sexual intercourse is a defense to rape by intoxication. …

The convictions on counts 2, 3, 4, 5, and 11 are reversed…. All other aspects of the judgment are affirmed….

State v. Smith

39 Kan. App. 2d 204, 178 P.3d 672 (2008)

GREENE, J.: Jesse Smith appeals his conviction and sentence for rape, arguing insufficiency of the evidence, error in the admission of certain evidence, error in applying the rape shield statute, instruction error, cumulative trial error, and sentencing error. We reject Smith’s challenge to the sufficiency of the evidence. We conclude, however, that the district court erred in refusing to instruct the jury as to voluntary intoxication, but we conclude the error was harmless. Smith’s remaining claims of error are rejected; thus, we affirm his conviction.…

On July 14, 2004, S.L. met Smith, her friend of 5 months, to have dinner and “a couple drinks.” She considered him merely a friend, had no sexual or romantic interest in him, and was then dating another man. After dinner, they visited several bars and consumed a large quantity of beer; on the way home, S.L. passed out in Smith’s vehicle. Upon arrival, Smith indicated it was not safe for her to drive and offered his bedroom, promising to sleep on the couch. Before she retired, however, she invited Smith to sleep on one side of the bed, but she did not intend to have sex with him.

According to S.L., she awakened in the night and felt something on her hips but went back to sleep until she awoke and discovered she had nothing on from the waist down. She also discovered what looked to be semen with a black pubic hair on her genital area. She tiptoed back to the bedroom, grabbed her clothes, and left….

The next day, colleagues of S.L. urged her to see a physician, and the physician urged her to go to the hospital for an exam. Her father took her to the hospital, where she was examined and spoke to police about the incident.

Smith was charged with one count of rape in contravention of K.S.A. 21-3502(a)(1)(C), proscribing the act of sexual intercourse without consent under circumstances where the victim is incapable of giving a valid consent due to the effect of alcoholic liquor or narcotic drug, which condition is known by the defendant or reasonably apparent.

At trial, Smith testified that he went to sleep on the couch and did not remember anything else until he awoke the next morning. Smith requested an instruction on voluntary intoxication, but the district court refused to give the instruction and, instead, instructed the jury that “voluntary intoxication is not a defense to a charge of rape.” Smith was found guilty by the jury, and he was sentenced to 184 months’ imprisonment. He timely appeals.

Was the Evidence Sufficient to Support Smith’s Conviction of Rape?

On appeal, Smith argues the evidence was insufficient to sustain his conviction because the State did not prove S.L. was unable to give consent and the State did not prove Smith had knowledge she was unable to give consent or that this was reasonably apparent. These arguments fail….

Smith was charged and convicted of rape in contravention of K.S.A. 21-3502(a)(1)(C), which provides:

“(a) Rape is (1) sexual intercourse with a person who does not consent to the sexual intercourse, under any of the following circumstances:

….

“(C) when the victim is incapable of giving consent because of mental deficiency or disease, or when the victim is incapable of giving consent because of the effect of any alcoholic liquor, narcotic, drug or other substance, which condition was known by the offender or was reasonably apparent to the offender.”

To sustain Smith’s conviction the State needed to prove:

• Smith had sexual intercourse with S.L.;
• the act of sexual intercourse was committed without the consent of S.L. by reason of her inability to give consent, which was either known by Smith or was reasonably apparent to him; and
• the act occurred on or about July 15, 2004.

With regard to Smith’s challenge to the evidence of S.L.’s condition, our review of the evidence shows that she was approximately 5’ 6” tall, weighed 117 pounds, drank 6 to 8 beers on the evening in question, and passed out from drinking. She unequivocally testified that she never gave consent to Smith to have sexual intercourse and would not have done so. Our Supreme Court has declined to define the degree of intoxication required to sustain a rape conviction under K.S.A. 21-3502(a)(1)(C) and has stated that “[l]ay persons are familiar with the effects of alcohol. If the jury concluded [the victim] was drunk enough to be unable to consent to sex, we should give great deference to that finding.” State v. Chaney, 269 Kan. 10, 20, 5 P.3d 492 (2000).

With regard to Smith’s challenge to the evidence of his knowledge of S.L.’s condition, our review of the evidence shows that Smith told her she was too intoxicated to drive home and that she should stay at his residence for the night. Moreover, S.L. testified that Smith did not attempt to wake her or otherwise seek consent before performing sexual intercourse. From this evidence, a reasonable inference can be drawn that Smith had knowledge that S.L. was unable to consent due to intoxication or that it was reasonably apparent to him….

Viewing this evidence in the light most favorable to the State, we believe a rational jury could have found that S.L. was too intoxicated to give consent and that Smith had knowledge of this condition, or that it was reasonably apparent, and could therefore convict him beyond a reasonable doubt of the offense charged. We reject Smith’s challenge to the sufficiency of the evidence for these reasons.

Did the District Court Err in Refusing to Instruct that Voluntary Intoxication is a Defense to this Charge?

Smith next argues that the district court erred in refusing his request to instruct the jury on his defense of voluntary intoxication….

The State argues that rape does not require specific intent on the part of the defendant …, and that a defendant may not assert voluntary intoxication as a defense unless a particular intent or state of mind is a necessary element of the crime charged, citing State v. Gonzales, 253 Kan. 22, 23, 853 P.2d 644 (1993)….

Smith argues, however, that K.S.A. 21-3502(a)(1)(C) is unlike the other statutory proscriptions of rape in that it requires knowledge by the defendant that the victim is incapable of giving consent. He argues generally that our Supreme Court has acknowledged that voluntary intoxication is a proper defense in a situation where the defendant is not conscious of what he was doing and therefore incapable of forming the requisite state of mind for the knowledge element of the crime, citing State v. Ludlow, 256 Kan. 139, 883 P.2d 1144 (1994).

Our research reflects that our Supreme Court has not faced the precise issue framed by this appeal, i.e., whether the knowledge requirement of K.S.A. 21-3502(a)(1)(C) justifies a voluntary intoxication defense. Even though rape has generally been held to be a crime of general intent, we do not find a case addressing the question in the context of the precise statutory subsection at issue here.…

Based upon the statutory language, rape where the victim is unable to consent due to intoxication clearly requires, as an element of the offense, that the defendant have knowledge of this aspect of the victim’s condition, or that this condition was reasonably apparent to him. This knowledge element is above and beyond whatever general intent may be required for the prohibited act of sexual intercourse….

K.S.A. 21-3208 codifies the defense of voluntary intoxication. It states:

“(1) The fact that a person charged with a crime was in an intoxicated condition at the time the alleged crime was committed is a defense only if such condition was involuntarily produced and rendered such person substantially incapable of knowing or understanding the wrongfulness of his conduct and of conforming his conduct to the requirements of law.

“(2) An act committed while in a state of voluntary intoxication is not less criminal by reason thereof, but when a particular intent or other state of mind is a necessary element to constitute a particular crime, the fact of intoxication may be taken into consideration in determining such intent or state of mind.” (Emphasis added.)

We must determine whether the knowledge element of K.S.A. 21-3502(a)(1)(C), i.e., “which condition [the victim’s intoxication] was known by the offender or was reasonably apparent to the offender” is an “other state of mind” under K.S.A. 21-3208 such that voluntary intoxication should have been recognized as a defense. We answer this question in the affirmative.

Our Supreme Court has provided a helpful discussion of “state of mind” for purposes of K.S.A. 21-3208 in Ludlow, 256 Kan. at 144-45. The court cited Black’s Law Dictionary, which now defines “state of mind” as “the condition or capacity of a person’s mind” or “a person’s reasons or motive for committing an act, esp[ecially] a criminal act.” Black’s Law Dictionary 1446 (8th ed. 2004). Most notably for our purposes is the court’s reference with apparent approval to United States v. Feola, 420 U.S. 671 (1975), where the Court noted the absence in a certain federal criminal statute of “any requirement for a particular state of mind such as ‘knowingly’“ in holding that in order to incur criminal liability under the statute, the actor must entertain merely a general criminal intent. (Emphasis added.) See State v. Farris, 218 Kan. 136, 143, 542 P.2d 725 (1975). The corollary of this principle is that when a criminal statute contains a clear knowledge element, the crime proscribed requires a particular state of mind and makes it subject to a voluntary intoxication defense.

We recognize, however, that general criminal intent may be established by proof of intentional conduct, and that the term “knowingly” is included within the term “intentional” for these purposes. K.S.A. 21-3201. Nevertheless, when a criminal statute expressly requires specific knowledge of the victim’s condition, above and beyond any general intent to commit the prohibited act, we believe this requirement is beyond any more general knowledge requirement for criminal intent. The distinction between a general intent crime and a crime of specific intent is whether, in addition to the intent required by K.S.A. 21-3201, the statute defining the crime in question identifies or requires a further particular intent which must accompany the prohibited act. See State v. Sterling, 235 Kan. 526, 528, 680 P.2d 301 (1984).

Examining K.S.A. 21-3502(a)(1)(C), the prohibited act is sexual intercourse with a victim incapable of giving consent, but the statute requires a further state of mind of the offender, i.e., knowledge of that condition if not reasonably apparent. This is a state of mind that is beyond the general criminal intent required for rape. Accordingly, we conclude the knowledge requirement of K.S.A. 21-3502(a)(1)(C) justified a voluntary intoxication defense, and Smith was entitled to have the jury so instructed.

The erroneous instruction does not require reversal, however, because our review of the whole record shows that substantial justice has been done. K.S.A. 60-2105 requires that we disregard technical errors and irregularities which do not affirmatively appear to have prejudicially affected the substantial rights of the party complaining, where it appears upon the whole record that substantial justice has been done by the judgment. Moreover, even if Smith’s claim was elevated to a constitutional deprivation, we need not reverse his judgment where the evidence of guilt is of such a direct and overwhelming nature that it cannot be said the error could have affected the result of the trial. See State v. Denney, 258 Kan. 437, 445, 905 P.2d 657 (1995).

Here, the evidence against Smith was indeed overwhelming. He testified that he was aware of S.L.’s inability to drive home, and he then drove her to his house. S.L. had passed out in his car, and he woke her upon reaching his house. He told the interviewing officer that he remembers telling an officer of brushing his teeth, taking his contacts out, and going to sleep. He also remembers being invited by S.L. to sleep on one side of the bed, but he claims to recall nothing thereafter, despite the clear DNA evidence of sexual intercourse with S.L. The fact that he remembers other details renders somewhat incredible his claim that he has no memory whatsoever of sexual intercourse with S.L. And, most damning, is the testimony of L.S. (detailed below), who testified to identical conduct by Smith, and which led to sexual intercourse with her after a night of mutual voluntary intoxication.

Reviewing all of this evidence, we conclude that the instruction error could not have affected the outcome of Smith’s trial, and we therefore reject his contention that he is entitled to a new trial.

Did the District Court Err in Admitting Evidence of Defendant’s Earlier Conduct, Contrary to K.S.A. 60-455?

Smith also argues that the district court erred in allowing a witness, L.S., to testify regarding Smith’s conduct on another occasion that was similar to his purported conduct against S.L. The district court allowed the evidence on the grounds it showed plan and absence of mistake or accident….

Prior to trial the State moved to present the testimony of L.S., who testified at trial that in December 2000 she was out with a group of people including Smith, when the group decided to go to a bar. They stayed until it closed, and she was very drunk. She was unable to drive home, so Smith suggested she come over to his house. He offered her the bed, agreeing to sleep on the couch. She did not remember how she got to Smith’s apartment, but she remembered passing out once in Smith’s bed. She awakened to find Smith having sexual intercourse with her, but was unable to move or speak. She testified that she did not consent in any manner to Smith’s conduct, but she made no formal complaint of his conduct. They subsequently became a couple, lived together, and became engaged before breaking up in September 2003.

In examining a K.S.A. 60-455 challenge to evidence of prior bad acts, our standard of review requires threshold determinations that (1) the evidence is relevant to one or more of the statutory exceptional facts (motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident); and (2) the fact was a disputed material fact in the trial. State v. Tiffany, 267 Kan. 495, 498, 986 P.2d 1064 (1999). Here the evidence was clearly relevant to show motive, intent, plan, and absence of mistake or accident. We note that to show plan or modus operandi under 60-455, the evidence of the prior conduct must be so strikingly similar or so distinct to the allegations before the court that it is reasonable to conclude the same individual committed both acts. State v. Jones, 277 Kan. 413, 421, 85 P.3d 1226 (2004). Here, we view the evidence presented by L.S. as so distinct a method of operation and so similar to that alleged by S.L. that it appears, indeed, to be strikingly similar.

Was motive, intent, plan, or absence of mistake or accident a disputed material fact in Smith’s trial? Smith’s defense was that he, too, was intoxicated and just did not remember having sex with L.S. This defense is potentially undermined by evidence of motive, intent, plan, and absence of mistake or accident. Particularly because we have held that the offense requires an element of knowledge or state of mind, and Smith challenged this element, and the fact that Smith may have intended or planned the entire encounter, thus negating any mistake or accident, enhanced the materiality of this evidence.

We conclude that … the district court did not err in allowing the testimony of L.S…

Summary and Conclusion

We reject Smith’s challenge to the sufficiency of the evidence to support his conviction, together with all other claims of trial error, with the exception of the refusal of the district court to instruct on the defense of voluntary intoxication. This error does not entitle Smith to a new trial, however, because overwhelming evidence supports his conviction….