Powered by TypePad

« September 2021 | Main | November 2021 »

October 31, 2021

Draft "Campus Sexual Misconduct Policy" for consideration before scheduled (in-class) hearing

The drafting committee of Cody V., Jesse W., and Madi W., has submitted this draft Campus Sexual Misconduct Policy for consideration:

Goal: Prevent sexual misconduct of all kinds and rape on campus, along with providing accused offender’s protection from false accusations.  These are extremely serious claims, and we will treat them as such. We are proposing strict and strong punishments, with the goal to prevent repeated offenses.  All students should be allowed to continue their progress towards graduation at a pivotal point in life in a safe environment.

Premise: Upon becoming students, they will sign legal waivers, requiring them to cooperate with sexual misconduct and rape investigations. They will be required to produce all materials pertinent to the investigations, including phone records, etc.

Section 210.0 Definitions:

Sexual misconduct: any touching of the body parts of another person or forced sexual penetration of another when consent is not provided. This is a broad term that encompasses sexual harassment, sexual assault, relationship violence, stalking, and sexual exploitation.

Consent is a knowing and voluntary expression to engage in a sexual act prior to and during it:

a. Silence or an absence of resistance does not imply consent;

b. Consent can be withdrawn at any time;

c. Substantial impairment of an individual indicates they lack the capacity to give knowing consent;

d. Past consent does not imply future consent;

e. Consent to engage in sexual activity with one person does not imply consent to engage in sexual activity with another; and

f. Coercion, force, or threat of either invalidates consent.

Watch List: Police/investigators monitoring future actions of students.

Appropriate measures: any reasonable action(s) to stop or bring awareness to the situation without endangering one’s life.

Overwhelming evidence: evidence of anything that was seen or experienced. Includes witnesses, biological evidence such as semen, blood, saliva, etc.

Date-Rape Drug: any substance that is used to rape or sexually assault another person. This includes alcohol and some medications such as Ketamine, Rohypnol, and GHB, etc.

Section 210.1

(1) A person is guilty of sexual misconduct if they commit any of the following:

(a) Sexual harassment

(b) Sexual assault

(c) Relationship violence

(d) Stalking

(e) Sexual exploitation

(2) A person is guilty of rape when non-consensual sexual penetration occurs, whether orally, anally, or vaginally.

Section 210.2 - Punishment

(1) Rape

(a) If clear and obvious evidence of rape is presented through an investigation, the student is permanently expelled from school and immediately required to leave campus.

(b) If evidence is unclear, student will be placed upon suspension and required to leave campus pending investigation

   (i) If the investigation determines that one has committed rape it will lead to permanent expulsion.

   (ii) If the investigation determines that one has not committed rape, the student will be placed upon the watch list and allowed to return to classes and campus.

(2) Sexual Misconduct

(a) If clear and obvious evidence of sexual conduct is presented through an investigation, student is to be suspended.

   (i) 2-year suspension from the semester of the incident and must participate in sexual assault classes. Upon return the student may not live on campus and will be added to the watch list.

(b) If an investigation offers no evidence to support sexual misconduct:

   (i) the student is allowed back into classes immediately upon clearance. The student will be added to the watch list.

(c) If a student on the watch list has continuously received complaints towards them, the student could be subjected to expulsion from the university.

(3) False Accusations

(a) If overwhelming evidence proves the allegation to be false and intentionally made up, the accuser will be suspended from school for 1 year with required furthering education.

(b) If an investigation determines that an accusation was falsely made, the accused student will be removed from the watch list.

(4) Date-Rape Drugs

(a) If found in possession of “date rape drug” - permanent expulsion from school

(b) If evidence of use of date rape drug - permanent expulsion from school

(5) Duty to intervene:

(a) If a student is witness to any sexual misconduct or rape, they must take appropriate and reasonable measures to intervene.

(b) In violation of this subsection:

   (i) One will be required to take bystander intervention courses and any other necessary educational courses.

   (ii) One will be suspended under certain severe circumstances

October 31, 2021 in Course materials and schedule | Permalink | Comments (0)

Raw scores for midterm exam now posted on Carmen under Files

I have now posted, to the Files folder on our Carmen class site, the raw scores for the midterm exam administered earlier this month (in a single page PDF). 

I plan to discuss what these raw scores mean during our class this coming week, and I will also discuss plans for setting up conferences for any and all students who may want to meet to discuss their performance or who may have questions about this midterm and/or law school exams more generally.

As I will stress in class, this midterm is quite intentionally designed as a learning experience and the raw score results are part of the learning process.  I will be eager to continue to advance that learning via one-on-one or group discussions in the weeks ahead.

October 31, 2021 in Course materials and schedule, Preparing for the final | Permalink | Comments (0)

October 28, 2021

Draft Aggravated Rape statutes for legislative consideration before scheduled (in-class) legislative hearing

The drafting committee of Katie B., Camryn H. and Hillary L. has submitted this draft of an Aggravated Rape statute for the legislature's consideration:

(A) Aggravated rape is any unconsented to sexual penetration, whether orally, anally, or vaginally, committed by a person charged as an adult, of another, accompanied by any of the following:

(1) Force, threat of force, or coercion:

   (a) Resulting in serious bodily injury or death to the victim

   (b) Use or possession of a deadly weapon by the offender, or leading the victim to reasonably believe s/he possesses a deadly weapon

   (c) Where the offender employs the assistance of another actor to facilitate the offense

   (d) Coercion is assumed where a relationship of authority exists over the victim, as specified in this subsection:

      (i) The offender is related to the victim

      (ii) The offender holds a supervisory, disciplinary, or other authoritative role over the victim, including but not limited to, legal guardian, educator, supervisor, law enforcement officer (including corrections officers)

(2) The offender administers a controlled substance or alcohol, without the victim’s affirmative consent, in an effort to prevent resistance by the victim.

(3) The victim belongs to any of the following vulnerable categories, whether or not it is known by the offender:

   (a) A minor under the age of 13

   (b) Physically incapacitated

   (c) Mentally incapacitated

   (d) Unconscious

(B) Aggravated rape is a first degree felony.

(C) A victim need not show physical resistance for prosecution under this statute.

(D) Evidence of the offender’s past sexual activity is permissible if material to a fact of the case or shows a pattern of behavior.

(E) Evidence of the victim’s past sexual activity is not permissible unless material to a fact of the case and its inflammatory or prejudicial nature does not outweigh its probative value.

(F) Conviction under this statute shall result in a sentence of 15 years - life in prison without the possibility of parole and mandatory lifetime sex offender registration.

(1) Conviction under subsection (3)(a) may be subject to a life sentence with the exception specified under subsection (F)(1)(a)

   (a) A minor convicted under subsection (3)(a) is not subject to a life sentence

(2) If subsection (D) shows that a pattern of behavior exists as specified under this statute the offender shall be subject to a life sentence.

(G) There is no statute of limitations to bring a charge under this statute

------------------------------------------------------

------------------------------------------------------

The drafting committee of Sydney B., Juliana H., Colin P. and Maddison W., has submitted this draft of an Aggravated Rape statute for the legislature's consideration:

Section 678.1. Aggravated Rape

(A) A person over the age of 16 who purposely, knowingly, or recklessly commits a non-consensual sexual act with another through force, coercion or threat is guilty of rape.

(1) A person over the age of 16 years who purposely or knowingly commits a non-consensual sexual act to another is guilty of aggravated rape when the offender:

   (a) Uses a deadly weapon to force, coerce, or threaten another to partake in non-consensual sexual activity

   (b) Inflicts serious bodily harm on another in the facilitation of unconsented sexual activity

   (c) Engages in unconsented sexual activity while committing or attempting to commit, or while fleeing immediately after committing or attempting to commit kidnapping, aggravated arson, arson, aggravated robbery, robbery, aggravated burglary, burglary, terrorism, or escape

   (d) Intentionally transmits a sexually transmitted disease

   (e) Commits the unconsented sexual act aided by one or more other persons

   (f) Utilizes a date-rape drug in the commission of an unconsented sexual act

(2) A person over the age of 16 years who purposely, knowingly, or recklessly engages in non-consensual sexual activity with another is guilty of aggravated rape when the victim:

   (a) Is under the age of 13

   (b) Is sufficiently intoxicated to the point that the victim is unable to provide consent

   (c) Is unconscious or otherwise incapacitated

   (d) Is unable to resist or provide consent due to cognitive or mental disability

(B) Definitions

(1) Non-consensual sexual act:

   (a) Non-consensual penetration, no matter how slight, vaginally or anally by another or an object of another, or

   (b) Non-consensual oral penetration, no matter how slight, by the sexual organ of another, or

   (c) Non-consensual masturbation of a person by another.

(2) Consent:

   (a) Consent is present when a person freely, voluntarily, and knowingly agrees to partake in an act.

   (b) Consent may be withdrawn at any time during a sexual encounter. After consent is withdrawn, an individual no longer maintains consent.

(3) Force, Coercion, Threat:

   (a) Power, violence, compulsion, or constraint exerted upon or against a person or thing.

   (b) Exercise of strength or power, especially physical, to overcome resistance.

   (c) Strength or power of any degree that is exercised without justification or contrary to law upon a person or thing

   (d) A victim need not prove resistance to force, coercion, or threat in order it to be established that the offender committed a non-consensual sexual act using force, coercion, or threat

(C) Punishment

(1) Whoever violates this section is guilty of aggravated rape, a felony of the first degree, with a definite prison term of 25 years to life

October 28, 2021 in Course materials and schedule | Permalink | Comments (0)

October 24, 2021

Reviewing basic sex offense provision in Ohio (and why you should be glad it won't be on the final)

As I mentioned last week and as we will keep exploring this coming week, modern sex offense doctrines can become quite intricate in efforts to properly categorize and criminalize a range of sexual misconduct (and also to keep up to date with modern norms and beliefs).  We will not look closely at the Model Penal Code's sex offense provisions because the original ones are widely seen as dated and on-going revisions are quite intricate

The great people of the great state of Oliwood are excited that a new "Aggravated Rape" statute and a new "Campus Conduct" policy are being drafted for legislative consideration in coming days.  Perhaps it could be helpful to those drafting these provisions to see how Ohio statute are constructed.  Here is how Ohio's Rape provision is currently written (with a few points bolding for in-class discussion):

Ohio Revised Code Section 2907.02 Rape:

(A)(1) No person shall engage in sexual conduct with another who is not the spouse of the offender or who is the spouse of the offender but is living separate and apart from the offender, when any of the following applies:

(a) For the purpose of preventing resistance, the offender substantially impairs the other person's judgment or control by administering any drug, intoxicant, or controlled substance to the other person surreptitiously or by force, threat of force, or deception.

(b) The other person is less than thirteen years of age, whether or not the offender knows the age of the other person.

(c) 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.

(2) No person shall engage in sexual conduct with another when the offender purposely compels the other person to submit by force or threat of force.

(B) Whoever violates this section is guilty of rape, a felony of the first degree.  If the offender under division (A)(1)(a) of this section substantially impairs the other person's judgment or control by administering any controlled substance, as defined in section 3719.01 of the Revised Code, to the other person surreptitiously or by force, threat of force, or deception, the prison term imposed upon the offender shall be one of the definite prison terms prescribed for a felony of the first degree in division (A)(1)(b) of section 2929.14 of the Revised Code that is not less than five years, except that if the violation is committed on or after March 22, 2019, the court shall impose as the minimum prison term for the offense a mandatory prison term that is one of the minimum terms prescribed for a felony of the first degree in division (A)(1)(a) of section 2929.14 of the Revised Code that is not less than five years.  Except as otherwise provided in this division, notwithstanding sections 2929.11 to 2929.14 of the Revised Code, an offender under division (A)(1)(b) of this section shall be sentenced to a prison term or term of life imprisonment pursuant to section 2971.03 of the Revised Code.  If an offender is convicted of or pleads guilty to a violation of division (A)(1)(b) of this section, if the offender was less than sixteen years of age at the time the offender committed the violation of that division, and if the offender during or immediately after the commission of the offense did not cause serious physical harm to the victim, the victim was ten years of age or older at the time of the commission of the violation, and the offender has not previously been convicted of or pleaded guilty to a violation of this section or a substantially similar existing or former law of this state, another state, or the United States, the court shall not sentence the offender to a prison term or term of life imprisonment pursuant to section 2971.03 of the Revised Code, and instead the court shall sentence the offender as otherwise provided in this division.  If an offender under division (A)(1)(b) of this section previously has been convicted of or pleaded guilty to violating division (A)(1)(b) of this section or to violating an existing or former law of this state, another state, or the United States that is substantially similar to division (A)(1)(b) of this section, if the offender during or immediately after the commission of the offense caused serious physical harm to the victim, or if the victim under division (A)(1)(b) of this section is less than ten years of age, in lieu of sentencing the offender to a prison term or term of life imprisonment pursuant to section 2971.03 of the Revised Code, except as otherwise provided in this division, the court may impose upon the offender a term of life without parole. If the court imposes a term of life without parole pursuant to this division, division (F) of section 2971.03 of the Revised Code applies, and the offender automatically is classified a tier III sex offender/child-victim offender, as described in that division.  A court shall not impose a term of life without parole on an offender for rape if the offender was under eighteen years of age at the time of the offense.

(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 2945.59 of the Revised 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 a defense to a charge under division (A)(2) of this section that the offender and the victim were married or were cohabiting at the time of the commission of the offense.

Here are some other major Ohio sex offense provisions, with the last one partially reprinted to perhaps aid the drafting of an Oliwood Campus Conduct policy:

ORC 2907.03 Sexual battery.

ORC 2907.04 Unlawful sexual conduct with minor.

ORC 2907.05 Gross sexual imposition.

ORC 2907.06 Sexual imposition:

(A) No person shall have sexual contact with another, not the spouse of the offender; cause another, not the spouse of the offender, to have sexual contact with the offender; or cause two or more other persons to have sexual contact when any of the following applies:

(1) The offender knows that the sexual contact is offensive to the other person, or one of the other persons, or is reckless in that regard.

(2) The offender knows that the other person's, or one of the other person's, ability to appraise the nature of or control the offender's or touching person's conduct is substantially impaired.

(3) The offender knows that the other person, or one of the other persons, submits because of being unaware of the sexual contact.

As I mentioned last week and as I will keep repeating this coming week, I will not be testing on any of this doctrine on the final exam!  The goal with this unit is not to work through and understand intricately all of these doctrinal particulars, but rather to explore how and why the law becomes so very intricate in this setting and the broader challenges of effective legislative drafting in this setting and others.

October 24, 2021 in Course materials and schedule | Permalink | Comments (0)

October 18, 2021

Simpsons hypo (aka RIP Rod and Todd Flanders) for considering unintended homicides

Waylon_SmithersI mentioned in class a Simpson's hypo for your consideration if you want a fact pattern to use to explore the various ways that various jurisdictions approach unintended homicide charges. Here it is, with helpful links to the Simpson's wiki:

Mr. Burns, that rich old codger, is having a problem with birds on his country estate.  Bart Simpson built a tree house on the property when he was ward of Mr. Burns, and Bart recently left open a huge vat of Marge’s home-made peanut butter.  (Bart had to take it to the tree house to keep Homer from eating all of it himself.)  Smelling the peanut butter, birds from all over Springfield have invaded Burns’ property.

Burns tells his willing servant Waylon Smithers to get one of his antique flare guns and start firing shots into the tree around the tree house to scare all the birds away.  Burns urges Smithers to be sure to check whether anyone is in the area; Burns knows kids still like to use the tree house, even though Burns had his staff put up a sign stating that kids playing in the tree house would be prosecuted for trespassing.

Eager to do Burns' bidding and to shoo the birds away quickly, Smithers only calls out -- "Hello, can anyone hear me?" -- in any effort to determine if anyone is in the tree house.  Smithers does not directly check to make sure no kids are in the tree house beyond repeatedly calling out.  After calling out a few times, he gets no response (though the woods are noisy).  Smithers decides that he has done enough given that he does not plan to shoot directly at the tree house.  He then takes aim at branches nearby the tree house and starts firing.

Sadly, it turns out that Rod Flanders and Todd Flanders, devout children of the Simpsons' devout neighbor, were in the tree house praying because they thought being high off the ground brought them closer to their lord.  (The Flanders sincerely thought that praying, rather than playing, in the tree house was perfectly fine.  The kids had heard Smithers call out each time, but they thought it was the lord speaking to them.)  Tragically, the third shot from the antique flare-gun fired off line and into the tree house. 

The third flare shot by Smithers which entered the tree house struck Rod Flanders directly in the chest.  Todd Flanders discovered that his older brother Rod has been killed instantly by the flare; distraught, he jumps out the tree house window to his death.

Smithers turns himself in, and now you are the prosecutor trying to decide whether he might be guilty of some form of homicide in Washington (at the time of Williams); in Massachusetts (at the time of Welansky), in Oliwood under the MPC; and in Ohio now.

October 18, 2021 in Course materials and schedule, Preparing for the final | Permalink | Comments (0)

October 13, 2021

Congrats on completing midterm, and now on to Welansky backstory

Here is a documentary with a partial recreation of the events that lead to the prosecution of Barnett Welansky.  The introduction is a bit much, but the 20 minutes that follow give you a flavor of the story behind an historic and horrific event: 

October 13, 2021 in Notable real cases | Permalink | Comments (1)

October 8, 2021

How would you expect an Ohio version of the Berry case to come out?

A case with facts reasonably similar to the facts in the Berry murder/manslaughter case in our text was litigated all the way up to the Supreme Court of Ohio in State v. Shane, 63 Ohio St.3d 630, 590 N.E.2d 272 (1992).  Here are the facts in the Shane case:

At approximately 6:00 a.m. on October 13, 1989, appellant, Robert Shane II, made a telephone call to the New Philadelphia Police Department to report the death of his fiancee, Tina Wagner.  Shane told the police officer who answered the phone, "I'm the one who did it ... she just drove me crazy and I choked her."  Police officers soon responded to the scene, which was an apartment shared by Shane, Wagner, and the couple's infant child.  When the officers entered the apartment, they discovered Wagner's nearly nude body lying on a bed; a red shirt was wrapped tightly around the victim's throat.  An autopsy revealed that Wagner had died of asphyxiation by strangulation.  Tests done on the victim's body revealed a urine alcohol content of 0.27 grams per deciliter.

Shane was indicted on one count of murder, a violation of R.C. 2903.02, to which he entered a plea of not guilty.  Testifying in his own defense at the trial, Shane again admitted that he had killed Wagner, but told the jury of statements Wagner had made to him immediately prior to the incident, which upset him greatly.  Shane stated that Wagner told him she had been sleeping with other men and that she no longer cared for him.  Shane testified, "I have never felt more upset and more mad with anyone [in] my entire life."  Shane further testified that after he became so upset, the next thing he remembered was "coming to" after having passed out and finding himself lying on the bed with Wagner underneath him.

How do you think the Supreme Court of Ohio applied Ohio's particular version of voluntary manslaughter rule on these facts?  The Shane case provides a helpful account of how Ohio courts look at the issue of provocation, and here some of the general discussion of the law from the Shane court: 

An inquiry into the mitigating circumstances of provocation must be broken down into both objective and subjective components.  In determining whether the provocation is reasonably sufficient to bring on sudden passion or a sudden fit of rage, an objective standard must be applied.  Then, if that standard is met, the inquiry shifts to the subjective component of whether this actor, in this particular case, actually was under the influence of sudden passion or in a sudden fit of rage.  It is only at that point that the emotional and mental state of the defendant and the conditions and circumstances that surrounded him at the time must be considered.  If insufficient evidence of provocation is presented, so that no reasonable jury would decide that an actor was reasonably provoked by the victim, the trial judge must, as a matter of law, refuse to give a voluntary manslaughter instruction.  In that event, the objective portion of the consideration is not met, and no subsequent inquiry into the subjective portion, when the defendant's own situation would be at issue, should be conducted.

The Shane court is the last major Ohio Supreme Court discussion of voluntary manslaughter in the context of a domestic dispute, but this issue continues to arise in lower courts.  And for an interesting debate over how Shane should be applied on a slightly different set of facts, you might consider the work of the Ohio Eleventh District Court of Appeals in State v. Wagner, 2007 Ohio 3016 (Ohio Ct. App. 2007), in which the appellate panel divided over the appropriateness of a voluntary manslaughter instruction in another case involving a husband killing his wife amid heated discussions of infidelity.

October 8, 2021 in Course materials and schedule, Notable real cases | Permalink | Comments (0)