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November 24, 2013

Notable discussion of the death penalty in Ohio

I have mentioned my willingness to discuss the death penalty in an extra optional session, and I am happy/eager to do so next week right after our classes and/or just about any other time next week or throughout December.  (Perhaps talking about executions might give you some healthy perspective on how relatively unimportant exam performance is in the grand scheme of things.)

The story of the death penalty in Ohio is especially interesting and dynamic, and could (but need not be) a focal point of any of our discussions.  And if this topic especially interests you, I recommend this new article from the Toledo Blade, which is headlined "Death penalty cases ebb in Lucas County and Ohio: Decline tied to more flexibility in sentencing." Here are a few excerpts:

When John Winfield was sentenced to life in prison last month for the robbery and shooting death of Toledoan Mark Ward in 2011, Lucas County’s last active capital murder case was closed. In what may be the first time since the death penalty was reinstated in Ohio in 1981, no such cases are pending before the court.  Not a single person was indicted in Lucas County on capital charges this year or last.

It’s a situation that reflects a statewide trend toward fewer death penalty prosecutions. Ohio Supreme Court records show that just nine individuals were indicted in the state on capital murder charges through July, and just 36 for all of last year.  That compares to 159 indictments in 1983, 109 in 1993, and 95 in 2003.

A key reason for the decline is that since 2005, judges have had the option of sentencing those convicted of aggravated murder to life in prison without the possibility of parole....

A 20-member task force appointed by Ohio Chief Justice Maureen O’Connor expects to make recommendations to the state’s top court for possible changes to the death penalty by March, said Lucas County Common Pleas Judge Linda Jennings, the only local member of the group.  “We’re looking at every single issue to make sure that the death penalty is administered fairly,” Judge Jennings said.

I am also a member of the task force appointed by Chief Justice O’Connor, and I could talk about the work of the task force or any other topics of interest to folks.

I urge anyone eager to have a special (entirely optional) session to talk about any death penalty topic to note their interest in the comments and perhaps suggest an ideal time for such a session.

November 24, 2013 in Current Affairs | Permalink | Comments (4) | TrackBack

November 23, 2013

"Duty to retreat is a safeguard"

The title of this post is the headline given to this letter to the editor in our own Columbus Dispatch authored by John Gilchrist, the legislative counsel to the Ohio Association of Chiefs of Police.  The whole letter is worth a read, and it starts and ends this way:

The Ohio Association of Chiefs of Police is opposed to the “stand your ground” provision of House Bill 203, which repeals a person's duty to attempt to retreat from danger, if possible, before resorting to deadly force against an attacker.  There is no problem with the current law.  Current law balances societal interests.  There are strong public policies for preserving the sanctity of life on one hand and, on the other hand, for allowing one to protect himself from harm....

[R]epealing the duty to retreat is a recipe for more violence, whereby killings currently considered to be criminal will become justifiable homicides.

Remove the duty to retreat and you remove a legal restraint that will allow pride, passion and ego to prevail over common sense.

November 23, 2013 in Current Affairs, Reflections on class readings | Permalink | Comments (8) | TrackBack

November 22, 2013

"The Case of the Speluncean Explorers" ... as it might be resolved in Ohio

I hope everyone enjoyed Wednesday's role play experience and also learned a lot about the operation of duress and necessity doctrines in Oliwood under the (unique) terms and structure used by the Model Penal Code.  We will be wrapping up discussion of these doctrine in our remaining classes before the Thanksgiving break, but we will not be talking any more about Dudley & Stephens.  Fortunately, if folks remain engaged by the legal and/or philosophical issues raised by the Dudley & Stephens case, there are lots of wonderful additional readings I can recommend.

A "classic" law professor engagement with the issues raised in Dudley & Stephens appeared in a Harvard Law Review article published 65 years ago.  The Case of the Speluncean Explorers by Lon Fuller is one of the most famous law review articles ever written, and the start of this Wikipedia article highlights why it is worth your time and attention:

It largely takes the form of five separate judicial opinions attributed to judges sitting on the fictitious Supreme Court of Newgarth in the year 4300. The hypothetical involves five cave explorers who are caved in following a landslide. They learn via intermittent radio contact that they are likely to starve to death by the time they can be rescued. The cavers subsequently decide to kill and eat one of their number in order to survive. After the four survivors are rescued, they are indicted for the murder of the fifth member. The prescribed penalty is capital punishment. Fuller's article proceeds to examine the case from the perspectives of five different legal principles, with widely varying conclusions as to whether or not the spelunkers should be found guilty and thereby face the death penalty under the law of Newgarth.

Fuller's account has been described as "a classic in jurisprudence" and "a microcosm of [the 20th] century's debates" in legal philosophy, as it allowed a contrast to be drawn between different judicial approaches to resolving controversies of law, including natural law and legal positivism.

Joyfully, for a wonderful, shorter and more recent consideration of these issues, one member of the class had the great initiative to imagine how a modern-day case of this nature might get resolved in Ohio. That student has graciously allowed me to post her analysis, and here is how she sets up the factual context:

Let's imagine a scenario in which four avid hikers, all associated with Ohio’s State Parks, decide to go for a winter hike at Serpent Mound, located in idyllic Adams County, Ohio. The group consists of Hatlen Books, a veteran tour guide, Dursley Dudley and Richard Stephens, members of the Ohio State Parks administration, and Peter Parker, a trainee guide, though noted as a talented climber.  The hike was predicted to be an easy one and take no more than a few hours to complete; it was more-so an excursion to view the aforementioned idyllic landscape.  The hikers deviated from the path because of an intense and unpredicted snowstorm that caught the band off-guard and limited their ability to navigate.  The band happened upon a previously unknown sinkhole that had formed sometime after the last ranger appraisal of the land (which has been some-time ago with state budget cuts).  The group was stranded on a rocky, but stable, covered corner of the hole with only snow for hydration and a 2lb bag of vegan trail mix Stephens brought on the trip.  Despite the group’s reluctance to eat vegan, they subsisted off the mix and an unlucky rabbit for 18 days.

Download Prosecuting Dudley & Stevens in Ohio

November 22, 2013 in Class reflections, Course materials and schedule | Permalink | Comments (0) | TrackBack

November 17, 2013

Renisha, race and reasonableness: wrapping up defensive use of force and defense strategies

As noted in the comments to prior posts, on Friday local Michigan prosecutors announced criminal charged against Theodore Paul Wafer for causing the death of Renisha McBride.  This lengthy new AP story, astutely headlined "Renisha McBride Shooting: Homeowner's Legal Case Could Hinge On One Word," provides a reasonable account of how standards and judgments about reasonableness will be at the heart of this case:

The way Renisha Marie McBride's young life ended Nov. 2 is not in dispute: A homeowner in suburban Detroit fatally shot the 19-year-old in the face as she stood on his porch before the sun came up. Almost every other aspect of the case is not as clear-cut.

Did race play a role in the shooting? What exactly happened on that doorstep? Did the homeowner reasonably believe he was acting in self-defense?

Police and prosecutors say Theodore Paul Wafer fired once with a 12-gauge shotgun through his screen door at McBride. The 54-year-old airport maintenance employee, who faces murder and manslaughter charges, is free on bail awaiting a Dec. 18 hearing that will determine if the case should go to trial.

Ron Bretz, a Cooley Law School professor and former criminal defense attorney, says the case may boil down to a single word. "It's got to be reasonable," he said. "The question is: What would a reasonable person do in these circumstances?" That may be the key question in determining Wafer's guilt or innocence, but much else is left unknown about a case that features legal and societal implications.

Under a 2006 Michigan self-defense law, a homeowner has the right to use force during a break-in. Otherwise, a person must show that his or her life was in danger.

Defense lawyers are expected to argue that Wafer feared for his life when a drunken McBride — toxicology reports put her blood-alcohol content at well above the legal limit for driving — came to his door in the middle of the night hours after crashing her car blocks away in Detroit. Those factors contribute to Wafer's "very strong defense," said his lawyer, Mack Carpenter.

Prosecutors and McBride's family, meanwhile, see no justification for the slaying of the recent high school graduate. She was unarmed, they note. Plus, the screen door Wafer fired through was locked. "Where's his reasonable belief that his life was in jeopardy or that he was in jeopardy of great bodily harm?" said lawyer Gerald Thurswell, who represents McBride's family.

It all comes down to what a jury thinks, Bretz said. "You've got a gun. There's an unarmed young woman on your front porch," he said. "Is it reasonable to think that she's a threat to you? That's going to be a toughie. "Is it fair to feel scared when a stranger is pounding on your door at 4 or 5 in the morning? Hell, yeah. ... Don't answer the door," Bretz said....

Bretz said both sides would be wise to stick to a "race-neutral" strategy. "Don't go there. Keep it on the facts," he said. "Who wants to bring race into it? Everybody else. ... The defense doesn't want that. And the prosecution doesn't want to bring it in. I don't think they need to."

Wayne County Prosecutor Kym Worthy didn't appear to completely rule it out Friday. "In this case, the charging decision has nothing whatever to do with the race of the parties," she said. "Whether it becomes relevant later on in the case, I don't know. I'm not clairvoyant."...

Bretz said a potential defense argument is that McBride's extreme drunkenness posed a threat. "Was she acting crazy? If so ... this gave (Wafer) a greater right to be afraid," Bretz said.

The toxicology report also indicated McBride's blood tested positive for the active ingredients in marijuana. McBride's family said it doesn't matter, but Bretz said he could see the defense focusing attention on McBride's behavior. "It makes her out not to be an angel. She got drunk and stoned and drove and crashed her car. But that's not a death-penalty offense," he said.

McBride's father, Walter Ray Simmons, referred to the defendant as "Mr. Wafer" when he talked to reporters Friday. He then stopped: "I don't even know why I'm saying 'Mr. Wafer.' This monster who killed my daughter."

Earlier Friday, at his arraignment, Wafer stood in a Dearborn Heights courtroom and listened as Carpenter argued for a lesser bail amount. Carpenter described Wafer as a steadily employed high school graduate who spent a year at Northern Michigan University and whose only run-ins with the law involved a couple of decades-old drunken driving cases. Wafer cares for his 81-year-old mother, Carpenter said.

Fellow defense lawyer Cheryl Carpenter said her client has been affected by the case. "You could see it is weighing on him, and he realizes the extent of what happened that night," she said outside of court. "This is part of the problem with this case. There's been so much prejudgment and so much speculation," Cheryl Carpenter said. "Until we get all the facts out, and we don't even have all of the facts yet."

In addition to encouraging comments about the charges brought in this high-profile case, I suggest students think about what additional "facts" the defense team may be especially eager to get out. (I put "facts" in quotes here because of I think/fear/expect all future "facts" we learn to be interpretations/perceptions as much as pure facts.)  I especially encourage students to consider what "facts" learned by the defense team might lead Wafer's lawyers to consider encouraging Wafer to plead guilty rather than assert his innocence at a trial.

Right away from reading this story, I want to know a lot more about the type of "locked screen door" that Wafer shot through.  I also want to know more about what other door was in the entrance way and the configuration of the porch.  I also want to know when and from where Wafer accessed his shotgun and whether it had already been loaded.  I am not at all sure these "facts" are likely to help the defense's case, but they certainly seem key parts of figuring out whether a jury is likely or unlikely to view Wafer's behavior as reasonable. 

November 17, 2013 in Notable real cases | Permalink | Comments (4) | TrackBack

November 14, 2013

All the raw scores and data analysis from mid-terms in one spreadsheet

Thanks to the wonderful and efficient and spreadsheet savvy Mrs. Berman, I can now post (two days before promised) all the raws scores and other metrics following my review of all your mid-term efforts.  You should give all thanks to my better half for helping me make this information available ASAP in this form, you should give all curses and questions to me about the substantive or procedural particulars.

Download Berman Criminal Law mid-term metrics

November 14, 2013 in Course materials and schedule, Preparing for the final | Permalink | Comments (3) | TrackBack

November 11, 2013

Sad example from Michigan of an honest but UNreasonable use of deadly force?

As we wrap up our discussion of self-defense doctrines this week, we will give particular attention to how the MPC and Ohio deal with uses of deadly force when a defendant may have honestly but unreasonably believed force was needed for self defense.  Sadly, there is a new case from Michigan involving the death of a young woman that provides a set of (still unclear) facts that may allow us to probe effectively modern doctrines and policy debates.  This USA Today article from last week, headlined "Family wants answers in shooting of woman seeking help," provides these sad details:

Police say a homeowner told investigators his shotgun accidentally discharged, shooting a 19-year-old Detroit woman to death as she stood on the porch of his home early Saturday.

Members of 19-year-old Renisha McBride's family said they believe the African-American woman was racially profiled by the homeowner.  They said McBride, whose cellphone had died, had gone up to the house on Outer Drive seeking help after she was involved in an auto accident early Saturday morning.

"This man's claiming — believed the girl was breaking into the home. And he's also saying the gun discharged accidentally," Lt. James Serwatowski, chief detective, said Thursday.

Police are also countering the family's account that McBride was shot in the back of the head with a shotgun as she turned to leave.  The family said she had gone to the house seeking help after being involved in a car accident several blocks away. "This girl was not shot in the back of the head while leaving the porch," Serwatowski said "I don't know where the family is getting this.  She was shot in the front of the face, near the mouth."

"I know the family is anxious to see this man (the alleged shooter) charged, but the prosecutor's office is telling us they want a lot more information before they make a decision," Serwatowski said.

The Wayne County Prosecutor's Office reiterated Thursday that it is awaiting further investigation by Dearborn Heights police before deciding whether any criminal charges will be authorized in the case.   "I'll confirm that she was in an accident in Detroit and that she left the accident scene, and then some hours transpired" before the shooting, Serwatowski said.

Serwatowski said the shooting occurred about 3:40 a.m. and the accident happened at about 1:30 a.m.  He declined to say what police believe McBride was doing before and after the accident. The homeowner's .12-gauge was seized by police and the Michigan State Police crime lab is analyzing it, Serwatowski said....

"Black life is not valued in America, not worthy, not respected," said Detroit activist Yusef Shaker.... "Here was a woman who was seeking help from potential danger and her life was taken. ... It's a Trayvon Martin case all over again."

"Why didn't he call 911?" asked Bernita Spinks, 48, an aunt of McBride. "That's what I want to know. ... It's racial profiling." In McBride's case, Spinks said: "He could have called the police. She wasn't in the backyard. She was at the front door knocking ... that man had the time to look out his window."

McBride's family said they were told the house was about four blocks away from where the accident occurred. Spinks said McBride had been driving her 2001 white Ford Taurus when she struck another car, parked and walked to find help. "She was disoriented. She was scared. And this is what she got, knocking on a door," Spinks said. "All I want is justice for Renisha. It makes me enraged." The area where the shooting took place is a mix of residential and business.

Grieving family members gathered Wednesday night at the house in northwest Detroit where McBride lived with her grandmother, mother and her 22-year-old sister. Her parents were overcome with grief and unable to speak to a reporter, Spinks said.  But all shared outrage over what happened.

A graduate of Southfield High School, McBride was known as a friendly person who worked hard, Spinks said. McBride recently got a job at the Ford Rouge plant in Dearborn on the inspection line, she said. "She was sweet," Spinks said. "She didn't get into trouble."

In part because of the suggestion that the shooting here was accidental, this case may end up being more about whether and what degree of homicide may be in play as much as it is about use of defense force. But, for class discussion purposes, I plan to try to work through how Ohio and the MPC would handle this case if the shooter/potential-defendant were to readily admit that he purposely shot through the door because he honestly believed that his life was threatened by the noises he heard on the porch in the middle of the night.

To the extent folks are eager to discuss this case before we get to class on Wednesday, perhaps we can/should start by debating in this space some questions that I already have:

1. Why has this case not (yet?) received media attention anywhere comparable to what happened in the Trayvon Martin shooting?

2. Should local prosecutors convene a grand jury to investigate this shooting rather than just rely on the police investigation?

3. Does this kind of cases make you more or less comfortable with the traditional "castle doctrine" which provides that there is never a duty to retreat before using deadly force when one is in his own home?

November 11, 2013 in Class reflections, Course materials and schedule, Notable real cases | Permalink | Comments (9) | TrackBack

Readings on veterans and some modern criminal justice issues

Especially because the College of Law is taking the day off to celebrate Veterans Day, I thought it appropriate to urge students to check out two new posts of mine on other blogs discussing the challenges many vets face thanks to our modern criminal justice system:

November 11, 2013 in Current Affairs | Permalink | Comments (0) | TrackBack

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 | Comments (5) | TrackBack

November 4, 2013

Clarifying readings/plans for covering self-defense

The junior lawyers from the Oliwood firm of Douglas, Aaron, Ber, Man and Associates LLC have made arrangements with potential client Tom Dudley to meet at 1:45pm on Friday, November 12.  That means we will be focused on self-defense doctrines during Tuesday's class (and, as you all surely recall, we do not have class on Thursday, Nov. 11).

I just noticed a typo in the syllabus, and I want to make extra sure we are all "on the same page" for our self-defense discussions in the next few classes.  So:

1.  For WEDNESDAY's class, be sure to read (and re-read) La Voie and especially Leidholm very carefully.  In addition, read ASAP the Ohio Supreme Court's decision in State v. Thomas, which is available in pdf form at this link. (The official cite is State v. Thomas, 77 Ohio St.3d 323, 673 N.E.2d 1339 (1997).)  Hard-core socratic fun will be had by all, so read accordingly!

2.   For FRIDAY's class, be sure to read (in addition to re-reading La Voie and Leidholm and Thomas) the case of US v. Peterson, 483 F.2d 1222 (D.C. Cir. 1973).  I will pass out an edited version of Peterson in class on Wedensday, but everyone should feel free (but not required) to read the original in full.

November 4, 2013 in Course materials and schedule | Permalink | Comments (0) | TrackBack

Seeking (informed or uninformed) thoughts on upper-level criminal courses at Moritz

As we shift in to the final weeks our time together, I am eager to hear thoughts from 1L students about what upper-level courses in the criminal law and procedure arena might be of interest to you. 

As you may know (and may be very glad to hear), you are not required to take any more criminal law courses after our class together.  Because I think it wise and useful to give law students considerable freedom to create their own professional paths ASAP, I am glad no additional criminal law coverage is required at Moritz for graduation.  (I believe there are at least a few law schools that require a basic course in criminal procedure as well as a course in the basics of substantive criminal law.)  That said, because I think it wise and useful to give law students considerable freedom to create their own professional paths, I am eager to try to ensure that the Moritz upper-level curriculum includes a broad array of criminal courses that might be of interest and/or useful to students.

There are two upper-level criminal procedures courses that will always get offered every year at Moritz, in part because they are important and valuable course even for law students largely disinterested in ever practicing criminal law: the CP-Investigations course covers police practices/constitutional privacy issues; the CP-Adjudication course covers prosecutorial practices/trial rights.  But what else gets offered often depends on the interests and availability of the Moritz crim law faculty (e.g., when I first came to Moritz, I used to teach sentencing and/or death penalty courses or seminars every year, but more recently I have been more regularly teaching various skills courses and/or developing "hot topics" seminars on matters like the Second Amendment and marijuana laws and reforms).

Believe it or not, it is almost time for the faculty to start indicating what courses they would like to teach next year.  Thus this post, as I am distinctly interested in hearing from you all (and lots of others) concerning what kinds of criminal law, procedure and policy issues you may not be eager to study further in the years ahead.  There are soooooo many issues that merit in-depth study --- including ones other Moritz faculty know especially well ranging from white-collar crime to race and the criminal law to theories/doctrines of defenses to the war on drugs to all sort of other stuff I just barely get a chance to mention in class --- and I have been wondering this morning if folks in our class have started developing a real sense of what criminal topics have really come to pique your interests.

November 4, 2013 in Class reflections | Permalink | Comments (5) | TrackBack

November 1, 2013

Oliwood rape reform proposals from four drafting subcommittees

At the risk of losing something in translation or formatting, I am going to post here, in alphabetical order (which is also the order for presentation), the four subcomittee proposals for revising/reforming Oliwood's rape provisions.  (I urge everyone to put any needed corrections/clarifications/concerns in the comments AND I suggest each group consider bringing hard-copy versions of their proposals to our legislative session this afternoon to aid full committee review and consideration.)

BORR subcommittee proposal

1. Rape is the penetration of the vagina or anus with any body part or object; or
2. Oral penetration by a sex organ of another person.
3. Proof of the victim’s consent immediately prior to penetration is a defense; evidence for consent that the jury may consider includes but is not limited to:
    a) prior relationship;
    b) prior communication;
    c) third party witnesses.

 

CORR subcommittee proposal

1. Aggravated rape: A person is guilty of aggravated rape, a felony in the first degree, when he or she knowingly: sexually penetrates another person absent consent and uses actual force or threat of force.  First time offenders face a minimum of ten years with a maximum of twenty-five years. Second time offenders face life without the possibility of parole.

 2. RapeA person is guilty of rape, a felony in the second degree, when he or she recklessly sexually penetrates another person absent consent. a. A person is guilty of rape, a felony in the third degree, when he or she sexually penetrates the victim under the guise of consent due to intoxication.  A person guilty of second or third degree rape faces a minimum of five years with a maximum of fifteen years.

 3. Sexual AssaultA person is guilty of sexual assault, a misdemeanor, when he or she engages in unwanted sexual contact with another person.  A person guilty of sexual assault faces a minimum of six months to one year in jail and a $5,000 fine.

 Definitions

1.  Sexual penetration: means sexual intercourse, cunnilingus, fellatio, analingus, or anal intercourse. Emission need not be proved as an element of any sexual penetration. Any penetration, however slight, is sufficient to complete the crime.

2.  Consent: Consent" means cooperation in act or attitude pursuant to an exercise of free will and with knowledge of the nature of the act. A current or previous relationship shall not be sufficient to constitute consent under the provisions of this part 4. Submission under the influence of fear shall not constitute consent. Nothing in this definition shall be construed to affect the admissibility of evidence or the burden of proof in regard to the issue of consent under this part 4.

3.  Sexual contact: sexual touching without penetration


FORR subcommittee proposal

§213.0 Definitions: “Sexual Conduct” means intercourse between two persons or anal intercourse, fellatio and cunnilingus between persons regardless of sex and the insertion, however slight, of any part of body or instrument into a vaginal or anal opening.

 §213.1 Rape and Related Offenses

(A)1. Aggravated Rape. No person shall engage in sexual conduct when:  (a) perpetrator compels the person to submit by force or by threat of imminent death, serious bodily injury, extreme pain or kidnapping, to be inflicted on anyone; or (b) perpetrator has removed the person’s power to appraise or control the person’s conduct by administering or employing without the person’s knowledge drugs, intoxicants or other means for the purpose of preventing resistance; or (c) the person is unconscious and this is known to the perpetrator; or (d) the person is ten years or younger. Lack of knowledge of age is not a defense.  An offense under paragraph 1 would constitute a sentence no less than 15 years.

 2. Rape. No person shall engage in sexual conduct when: (a) the other person’s ability to resist or consent is substantially impaired because of a mental or physical condition or because of advanced age, and the offender knows or has reasonable cause to believe that the other person’s ability to resist or consent is substantially impaired because of a mental or physical condition or because of advanced age or  (b) a person is prevented from resisting by any intoxicating or anesthetic substance, or any controlled substance, and this condition was known, or reasonably should have been known by the accused.  (c) the person is sixteen years or younger and the perpetrator should have reasonably known. When criminality depends on the child's being below a critical age other than 10, it is a defense for the actor to prove by a preponderance of the evidence that he reasonably believed the child to be above the critical age.  (d) the person does not express consent and the perpetrator acts recklessly in regard to determining whether consent has been given. Consent may be verbal or communicated through actions calculated to indicate consent in the mind of a reasonable person.  An offense under paragraph 2 would constitute a sentence no less than 10 years.

(B) A victim need not prove physical resistance to the offender in prosecutions under this section.

(C) Evidence of specific instances of the victim's sexual activity, opinion evidence of the victim's sexual activity and reputation evidence of the victim's sexual activity shall not be admitted under this section unless it involves evidence of the origin of semen, pregnancy, or disease, or the victim's past sexual activity with the offender, and only to the extent that the court finds that the evidence is material to a fact at issue in the case and that its inflammatory or prejudicial nature does not outweigh its probative value.

(D) Evidence of specific instances of the defendant's sexual activity, opinion evidence of the defendant's sexual activity, and reputation evidence of the defendant's sexual activity shall not be admitted under this section unless it involves evidence of the origin of semen, pregnancy, or disease, the defendant's past sexual activity with the victim, or is admissible against the defendant under section  §213.1, and only to the extent that the court finds that the evidence is material to a fact at issue in the case and that its inflammatory or prejudicial nature does not outweigh its probative value.

(E) Prior to taking testimony or receiving evidence of any sexual activity of the victim or the defendant in a proceeding under this section, the court shall resolve the admissibility of the proposed evidence in a hearing in chambers, which shall be held at or before preliminary hearing and not less than three days before trial, or for good cause shown during the trial.

(F) Upon approval by the court, the victim may be represented by counsel in any hearing in chambers or other proceeding to resolve the admissibility of evidence. If the victim is indigent or otherwise is unable to obtain the services of counsel, the court, upon request, may appoint counsel to represent the victim without cost to the victim.

(G) It is not a defense to a charge that the offender and the victim were married or were cohabiting at the time of the commission of the offense.

 

MORR subcommittee proposal

§213.1 Aggravated Rape:  (A) Whoever violates this section is guilty of aggravated rape, a felony of the first degree.  

(B) (1) No person shall engage in sexual conduct with another when any of the following applies: (a) The other person is less than thirteen years of age, whether or not the offender knows the age of the other person, provided the offender is over eighteen years of age, whether or not the offender knew or should have the age of the person. (b) the offender purposefully exploits or induces the person’s state of unconsciousness or other condition that prevents them from giving their free consent;  (c) the offender knowingly exploits the fact that the person is mentally ill or deficient, if –because of their illness or mental deficiency–their consent to intercourse did not constitute free consent.  (2) No person shall engage in sexual conduct with another when the offender purposely or knowingly  compels the other person to submit by force or threat of force.

(C) A victim need not prove physical resistance to the offender in prosecutions under this section.

(D) Evidence of specific instances of the victim's sexual activity, opinion evidence of the victim's sexual activity, and reputation evidence of the victim's sexual activity shall not be admitted under this section unless it involves evidence of the origin of semen, pregnancy, or disease, or the victim's past sexual activity with the offender, and only to the extent that the court finds that the evidence is material to a fact at issue in the case and that its inflammatory or prejudicial nature does not outweigh its probative value.

Evidence of specific instances of the defendant's sexual activity, opinion evidence of the defendant's sexual activity, and reputation evidence of the defendant's sexual activity shall not be admitted under this section unless it involves evidence of the origin of semen, pregnancy, or disease, the defendant's past sexual activity with the victim, or is admissible against the defendant under section [X] of the Oliwood Revised Penal Code, and only to the extent that the court finds that the evidence is material to a fact at issue in the case and that its inflammatory or prejudicial nature does not outweigh its probative value.

(E) Prior to taking testimony or receiving evidence of any sexual activity of the victim or the defendant in a proceeding under this section, the court shall resolve the admissibility of the proposed evidence in a hearing in chambers, which shall be held at or before preliminary hearing and not less than three days before trial, or for good cause shown during the trial.

(F) Upon approval by the court, the victim may be represented by counsel in any hearing in chambers or other proceeding to resolve the admissibility of evidence. If the victim is indigent or otherwise is unable to obtain the services of counsel, the court, upon request, may appoint counsel to represent the victim without cost to the victim.

(G) It is not an affirmative defense to a charge under division (B)(2) of this section that the offender and the victim were married or were cohabiting at the time of the commission of the offense.

(H) If any offense provided for in §213.2 results in substantial bodily harm or death to the victim, it shall constitute aggravated rape.

(I) If one is charged with an offense provided for in §213.2 and has previously been convicted of a charge in §213.2 the current offense will be treated as aggravated rape pursuant to §213.1.

(J) If any offense provided for in §213.2 is committed by multiple persons in cooperation the offense may be treated as aggravated rape pursuant to §213.1.

§213.2 - Rape - Oliwood

(A) Whoever violates this section is guilty of rape.

(B) No person shall knowingly engage in sexual conduct with another, when any of the following apply: (1) the other person does not express or imply consent.  (2) the offender exploits or induces the person’s state of unconsciousness or other condition that prevents them from giving their free consent; (3) The offender is the other person's natural or adoptive parent, or a stepparent, or guardian, custodian, or person in loco parentis of the other person who is under the age of consent.

(C) Evidence of specific instances of the victim's sexual activity, opinion evidence of the victim's sexual activity, and reputation evidence of the victim's sexual activity shall not be admitted under this section unless it involves evidence of the origin of semen, pregnancy, or disease, or the victim's past sexual activity with the offender, and only to the extent that the court finds that the evidence is material to a fact at issue in the case and that its inflammatory or prejudicial nature does not outweigh its probative value.

Evidence of specific instances of the defendant's sexual activity, opinion evidence of the defendant's sexual activity, and reputation evidence of the defendant's sexual activity shall not be admitted under this section unless it involves evidence of the origin of semen, pregnancy, or disease, the defendant's past sexual activity with the victim, or is admissible against the defendant under section [X] of the Oliwood Revised Penal Code, and only to the extent that the court finds that the evidence is material to a fact at issue in the case and that its inflammatory or prejudicial nature does not outweigh its probative value.

(D) Prior to taking testimony or receiving evidence of any sexual activity of the victim or the defendant in a proceeding under this section, the court shall resolve the admissibility of the proposed evidence in a hearing in chambers, which shall be held at or before preliminary hearing and not less than three days before trial, or for good cause shown during the trial.

(E) Upon approval by the court, the victim may be represented by counsel in any hearing in chambers or other proceeding to resolve the admissibility of evidence. If the victim is indigent or otherwise is unable to obtain the services of counsel, the court, upon request, may appoint counsel to represent the victim without cost to the victim.

(F) It is not an affirmative defense to a charge under division (B)(1) of this section that the offender and the victim were married or were cohabiting at the time of the commission of the offense.

November 1, 2013 in Course materials and schedule | Permalink | Comments (0) | TrackBack