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November 5, 2013

A fascinating judicial fight over federal rape provision's mens rea requirements

Though I want to put our rape discussion in the rear-view mirror so we can turn fully to defenses, a remarkable (and very lengthy) ruling by the full Eighth Circuit today in United States v. Bruguier, No. 11-3634 (8th Cir. Nov. 5, 2013) (available here), all but demands posting because it covers issues we have discussed throughout the semester.   Here is the unofficial summary of the 49-page ruling:

In order to establish a violation of 18 U.S.C. Sec. 2242(2), the government must show not only that the victim was incapacitated but that the defendant knew the victim was incapable of appraising the nature of the conduct or physically incapable of declining participation in or communicating unwillingness to engage in the sexual act; here the failure to give defendant's proposed instruction on this element deprived him of his defense that he did not know the victim was incapacitated or otherwise unable to deny consent; as a result, defendant's conviction under section 2242(2) must be reversed and the case remanded for a new trial.... Riley, Chief Judge, with Bright, Circuit Judge, concurring. Murphy,with Bye, Colloton, Gruender and Benton, Circuit Judges, dissenting.

Here is the rape provision of federal law that has the Eighth Circuit fighting over what mens rea is required for conviction:

Whoever, in the special maritime and territorial jurisdiction of the United States . . . knowingly— . . .

(2) engages in a sexual act with another person if that other person is—

    (A) incapable of appraising the nature of the conduct; or

    (B) physically incapable of declining participation in, or communicating unwillingness to engage in, that sexual act;

or attempts to do so, shall be fined under this title and imprisoned for any term of years or for life. § 2242.

I neither urge or expect students to read this whole ruling.  But the three distinct opinions are truly fascinating, and I hope they make a lot more sense to you than they would have just 3 months ago before being in our class.

November 5, 2013 in Class reflections, Notable real cases | Permalink


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The FORR group really talked about this when we were framing our rape legislation, especially when we put "(c) the person is unconscious and this is known to the perpetrator;" into it.

Posted by: Tresha Patel | Nov 5, 2013 8:58:13 PM

testing to see if comments are working....

Posted by: Doug B | Nov 6, 2013 4:13:42 PM

Here is some reporting on the deplorable state of law-enforcement - especially in sexual assault crimes - on Reservations.



Posted by: Ben Wallace | Nov 7, 2013 7:37:21 AM

I'm not really sure how to describe this article. A 23 year old women is charged with attempted murder and rape during 'rough sex' with her 52 year old girlfriend. There's a, seemingly, consensual relationship with specific nights that the victim did not want to have sex. Rough sex, to the point of physical violence, and no safe word. There's potential date rape or intoxication past the point of being able to consent. There is also this quote from the defendant "I didn't stop...I meant to stop" which sounds like a law school mens rea hypo.


Posted by: Matt Raby | Nov 8, 2013 8:27:06 AM

It's interesting to note that the Bruguier case was decided by the Eighth Circuit in tandem with US v. Rouilliard. Both cases sought to decide the same issue: must the accused have known that the person was mentally or physically incapacitated? The Bruguier panel said no (i.e. a win for the government), but the Rouillard panel said yes. The cases were decided completely differently on the very same day. This is significant because neither case is precedential, though they have differing results.

In Bruguier, Judge Diana Murphy used a strictly grammatical approach and said that 'knowingly' applied only to the stipulation of "engaging in a sexual act," the verb phrase it immediately preceded. The Rouilliard panel was not comfortable with prosecuting someone based only on 'knowingly engaging in a sexual act." This is not inherently a criminal act, they said. Therefore, without something more, the accused could not be found guilty, and they extended the requirement of knowing to the defendant's knowledge of the incapacitated person.

In the spring, the full court re-heard oral arguments on this issue. As of Summer 2013, no result had been reported, but early predictions based on the smaller panel hearings are leaning toward an interpretation of the 'knowing' requirement that favors the defendants in cases such as these. It will definitely be an issue to keep an eye on in the coming months.

Posted by: Kelly Flanigan | Nov 10, 2013 3:05:38 PM

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