A New Study on campus rape and the one in five number

Parents Forum
1221

As before, I want to remind everyone that while I am a CA lawyer I have not done this kind of criminal work in a long time. The below represents my attempt to figure out the hypotheticals in light of what I know, but I make no guarantees as to its accuracy. For that you’d need a real criminal lawyer.

Neither. He would be convicted because he met the elements of §261(a)(3) or (4). To that he raised his affirmative defense of mistake of fact. Since he cannot meet that burden, his defense fails, and the underlying jury finding of rape stands. The fact that it would be rape had he succeeded is irrelevant (strictly speaking, you can attempt a crime that is not, in fact, possible), as is the fact that he subjectively lacked intent (because he needs to satisfy both subjective and objective intent).

Rundle is the case setting up the distinction between the specific intent crime of attempted rape and the general intent crime of rape. People v. Braslaw, 233 cal.app.4th 1239 (2015), which I cited earlier, explains that holding in the case of rape of an unconscious person.

No, he would be convicted. Age is a strict liability crime, so his intent is irrelevant. That means for attempted rape, he must only have the specific intent to have sex with the person. Consent is irrelevant and in fact his belief in consent would tend to prove his guilt. His belief that the age of consent law was different is also irrelevant. That is a mistake of law, not a mistake of fact, and generally mistakes of law are not admissible as defenses. Even if it were, it would by no means be a reasonable belief, and therefore would fail the objective prong of the affirmative defense of mistake.

Yes. Ignorance of the law is still not sufficient for a mistake defense, since it is not a mistake of fact. If a person has sex with an unconscious person, thinking it was legal is not a defense. Thinking the other person was conscious might be, if the accused actually believed it and the belief was reasonable (hard to see how it would be but it’s possible). If the person was tried for attempt, however, the prosecution must show more than the specific intent to have sex. Instead, the prosecution must show the intent to have sex, the intent to have it against the will of the victim, and that the person was unconscious. See People v. Braslaw, 233 Cal.App.4th 1239, 1249 (2015).

Legally speaking, it probably isn’t. Practically speaking, it’s the man’s responsibility.

This is correct (cal penal code 261.5), and interestingly it applies to both parties. Having sexual intercourse with a minor who is nevertheless 4 years older than you is a felony (although practically speaking the younger person would probably not be charged).

1222

Thanks, Demosthenes. So let me see how this applies to Stanford dude, since that was what I was wondering about in the first place.

Guy is discovered with an unconscious partially dressed woman, seemingly about to have sex with her. He says, “I didn’t intend to rape her.” Then it depends on what he meant by “I didn’t intend to rape her.”

If the jury concludes he meant, “I didn’t intend to have sex with her; she was unconscious, so I was going to get help” or “… she was unconscious so I was walking away” then he’s fine.

If the jury concludes he meant, “I intended to have sex with her, and I knew it was against her will but I didn’t think it would be rape because I thought it was legal to have sex with unconscious people” and he had done something to further his intent, then he’s toast. That’s a mistake of law.

If the jury concludes he meant, “I intended to have sex with her, but I thought she was conscious” or “… but I didn’t realize it was against her will” then he is OK because he didn’t intend to rape her, even if his belief that she was conscious or had consented was objectively ridiculous.

1223

Yup it only matters what the jury thinks. And it only matters if it goes to trial as opposed to a plea or a dismissal.

1224

@“Cardinal Fang”: That’s largely correct. In the third scenario, it’s not enough for the jury to conclude that he meant “I thought she was conscious,” they have to conclude he actually believed it. Unreasonable mistake of fact is a defense to a specific intent crime. See, e.g., People v. Lawson, 215 Cal.App.4th 108 (2013); People v. Mares, 155 Cal.App.4th 1007, 1010 (2007) (“trial court erred when it instructed jurors that the mistake of fact had to be actual and reasonable, when in fact an unreasonable belief was sufficient to negate specific intent”). However, its a question of his mental state, so he actually has to think she was conscious/consenting to have a mistake defense. This is only to the attempt charges, however. Any completed charges are general intent crimes where his mistake of fact must be objectively reasonable. Hard to see how it would be, here.

1225

I see. So if he says, “I thought she was conscious” but the jury thinks, You liar, you didn’t think she was conscious. You’re just saying that now so you can stay out of prison then they can convict him.

1226

I’m having trouble parsing this in light of what you said elsewhere, Demosthenes. He wouldn’t be convicted of §261(a)(3) or (4) because he didn’t actually penetrate her: he was trying, but was interrupted before he succeeded. To the charge of Attempted Rape, he raises the defense of mistake of fact: he thought she consented. In #1223 you say that as long as the jury believes he really did think she consented, then he should skate.

1227

That’s right. Inchoate offenses are a particularly tricky bit of criminal law and I may not be explaining them well.

261(a)(3) and (4) are rape statutes, so they are general intent crimes. To defend he can, among other things, argue mistake of fact. Because they are general intent crimes he has to show both a subjective and objective reasonable mistake. An attempt of 261, however, falls under Penal Code § 21, which requires specific intent. To defend from that he needs only show a subjective mistake of fact and does not have to show it was objectively reasonable.

If the prosecution can show digital penetration, then we’re in the completion camp and his possible “mistake of fact” defense must show it was objectively reasonable. I can’t see that happening (assuming he doesn’t argue she was conscious for that part). If the prosecution can only show the attempt, then we’re in the inchoate camp and he only needs to prove he actually believed she was conscious/consenting (which I frankly doubt he could do).

I hope that makes it clearer, but if not this is a lovely diversion from actually working.

1228

People v. Braslaw is an interesting case from the point of view of our discussion. Braslaw was convicted of Rape of an Intoxicated Person. Recall that one element of this crime is that the victim be so intoxicated as to be unable to consent. The victim was very intoxicated, but she was still able to talk. The Appellate Court had no problem with this conviction; they didn’t raise an eyebrow at this interpretation of “intoxication.”

So, we can see that in California, people not only can, but do, get convicted of Rape by Intoxication of victims who are drunk but are still able to talk. It’s not just hypothetical.

It’s a super-recent case, from January of this year.

https://scholar.google.com/scholar_case?case=1358514625825736367&hl=en&as_sdt=6&as_vis=1&oi=scholarr

(PS. Thanks for the pointer to People v. Braslaw, @Demosthenes49. It’s a primer on what I was wondering about.)

1229

Now I am even more confused. Hasn’t everyone been pointing out that the spousal provisions in rape statutes were removed years ago. If so, how come the People.v. Braslaw appellate opinion states:

Also, the back and forth with these legal arguments is hard for us laypersons to follow, but is 'rape of an intoxicated person" a different statute than the regular rape statutes that we have been discussing? It seem like the verbiage and content is basically the same but seems to replace incapacitated with intoxicated.

1230

@TV4caster: I think Cardinal Fang is a lay person, though s/he is quite knowledgeable about law. If I say anything you’d like clarified though, feel free to ask.

Regarding the spouse thing, some states didn’t take it out of the law, they just enacted new law for spouses. California was one of them. Penal Code § 262 is largely identical but deals with spouses.

Rape of an intoxicated person is a subset of the general rape statute, § 261. Each of the subsets ((a), (b), ©, etc.) requires slightly different things to be proven, so they’re worth talking about as if they were separate statutes. You can take a look at the statute [url=<a href=“http://www.leginfo.ca.gov/cgi-bin/displaycode?section=pen&group=00001-01000&file=261-269%5Dhere%5B/url”>http://www.leginfo.ca.gov/cgi-bin/displaycode?section=pen&group=00001-01000&file=261-269]here[/url], though I’ll warn you that reading a statute is time consuming and challenging.

1231

Thanks @Demosthenes49 That is actually interesting reading and was not hard to follow at all (other than I was initially reading 261 as if all the points had to be present, before realizing it said “any”.

It was the “general intent”, “subjective mistake of fact” etc that was confusing in the earlier conversations, since I didn’t know any of those terms and had not had time to look them up.

I also don’t see the word “incapacitation” anywhere in the statutes but everyone kept putting up quotes earlier that used that specific term. The statutes you linked to describe that condition but don’t actually refer to it (unless I am missing it). The only thing I can think of is that the earlier quotes were College rules or guidelines and not actual California State Law, although I thought one of the quotes was about state law.

1232

@TV4caster: If you can point me to the post that wasn’t clear I’m happy to see if I can clarify. I’m also happy to clarify any of the other terms of art, if you’d let me know which ones you’d like made clearer.

1233

@Demosthenes49 Oh no, you were clear and are very helpful. I really appreciate your input. I just wasn’t knowledgeable about terms to understand it.

I will say one thing that maybe you would like to expound on, however. People when arguing the law will cite precedents when making their arguments (like what we saw happening earlier). But to the average Joe/Joan, like me (ok, maybe the above average Joe/Joan, since many people don’t pay attention to news or current events) we look at people citing cases and say so what, that proves nothing. We say that because it seems like all you hear are stories about the Appeals Court overturning this or that Lower Court. Or the Supreme Court overturning the Appeals Court which had overturned a Lower Court. Or you hear that one Circuit Court of Appeals has ruled one way on a case and another Circuit Court has ruled just the opposite.

For example: anyone who was quoting the Appeals Court ruling regarding discrimination against Muslims in the workplace was probably citing how they had overturned the Lower Court ruling. Now, the Supreme Court rules just the opposite in a rare almost unanimous vote and says the Appeals Court was full of it. Anyone who was citing any one of the numerous cases that were just overturned (many of them by large majorities instead of the usual 5-4) was making an invalid argument. I know it is just a relatively small percentage of cases that have outcomes like this but it sure seems to people who are paying attention that the law is very arbitrary and depends on which random selection of judges you get to hear a particular case.

How do lawyers view it?

1234

I agree with @TV4caster. Thanks, @Demosthenes49, you’ve been clear and helpful.

1235

@TV4caster: I can’t speak for all lawyers, but for myself, law is an evolving process like many others. There are larger trends and directions, though any given case might come out differently. It’s all part of the process of refining the law to fit what we need as a society.

1236

Right, except that for digital penetration it’s § 289 (d) or (e), sexual penetration by unconsciousness or incapacitation. But it’s the same idea: as a defense to completed digital penetration he’d have to show that he believed she was conscious and consenting, and that his belief was reasonable.

(Yeah, good luck with that. Two guys cycling by in the dark can tell she’s unconscious, but he can’t?)

1237

I agree about law evolving. I think people wonder about the decisions though when the breakdown is along political lines and you know that if a different party was in control of appointments that there would be a completely opposite ruling. Laws should not be political. I much prefer rulings like most of those recently where there was great consensus even though at first glance it seemed like several of the issues would come down along political lines.

1238

An important takeaway from this discussion is that a police report or news article is not enough information to make an informed judgment about whether a rape occurred.

1239

Hmmm. It seems to me that you’re suggesting a tactic for any person accused of sexual assault of a drunk person: file a counter claim that the accuser was also guilty of the same assault. Perhaps that will begin to happen. Heck, perhaps it already has, and we just don’t hear about those cases.

1240

Is this because guys have to be more careful about these situations than girls, because they are more likely to be accused of impropriety if anything goes wrong?


What gets me is how these problems are only drunk problems. In any normal scenario, you would never have to question whether someone was conscious enough to give consent. So again, for me, we are back to the huge issue of binge drinking. These kids are putting themselves in the position to be violated (accidentally or intentionally) and also in the position to be accused of violating someone. Binge drinking is one of the most dangerous things a person can do, and when you do it, you are making yourself vulnerable to this stuff.