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November 3, 2008

Draft Oliwood Rape provisions for continued consideration...

during Tuesday's (and perhaps even Wednesday's) class.....

Download latest_proposed_oliwood_rape_code.doc

Everyone should feel free to use the comments for comments (and I might add a few under my real name or perhaps with a fake name)....

UPDATE: I have received a copy of the proposal now put forward by the minority party.  Here it is:

Download You_Betcha_Rape_Provisions.doc

November 3, 2008 in Course materials and schedule | Permalink


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I remain concerned about the definition "Impairment." Would the main characters in the movie "Knocked Up" both be rapists because they both engaged in sexual conduct with someone impaired? Is this necessarily a jury question if a prosecutor were to go after one of them?

Also, I wonder if there can be any factors that categorically not jury questions given the broad definition that impairment means " reduced ability of a person to consent, including but not limited to decreased mental or physical capacity."

If a person has one beer at a party, can that be sufficient impairment? What if they he has a low IQ? What if she just broke up with a long-time partner? What if he is on ADD medication? What if she promises him a promotion? What if he promises her they will be together for her birthday?....

These question may sound silly, but I worry that if these are all jury questions then a prosecutor can bring all sorts of charges and defendants, risking a jury verdict of rape, may feel they have to plead guilty to something.

Posted by: Doug B. | Nov 4, 2008 6:01:25 AM

Do I read the You Betcha proposal right as making illegal (and rape(!)) any and all sexual activity between, say, a 15-year-old high school junior and an 18-year-old high school senior? Also illegal is, say, sexual activity between a 17-year-old college freshman and a 27-year-old graduate student?

Posted by: Dec/May romances... | Nov 4, 2008 6:08:14 AM

Yeah, Dec/May, I think you're reading it correctly. I have a real problem with calling an 18 year old who has sex with a 15 year old a second degree felon. An even bigger problem with condemning them to at least two years of prison. Is that really fair?

Also, I was thinking: Is there a better mens rea requirement that we could require in Section 3(b) instead of recklessly (consciously disregarding a substantial and unjustifiable risk)? What if A thinks that B might be under 16, and asks to check B's ID... What if B has a fake ID saying that they're over 16 and they're 15 and a half. Is A reckless? Is he knowing? Negligent? Is someone more blameworthy if they don't take proper precautions? Should an alleged rapist be responsible for a victim's misrepresentation?

My younger brother's friend found himself in this situation. He had sex with a girl who repeatedly said that she was over 16, and it turned out that she was under the age of consent. He's now serving a 3 or 4 year prison sentence. She consented to the sex, but when she got pregnant, her parents pressed charges for statutory rape against him. Is it really fair? I think we need to maybe address the reality that some victims lie in our statute. And also the reality that people under 16 have consensual sex all the time.
Is there a better way to do this?

Posted by: Maria | Nov 4, 2008 9:59:11 AM

I propose that we simply make rape a civil liability with damages to be determined by a jury.

Posted by: Melissa E. | Nov 4, 2008 11:13:36 AM

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