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. Rape:  A 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 Assault:  A 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.