Criminal
Law Class Notes
State v. Rusk trial
Prosecution:
The
question is whether what occurred was rape under the
1. No question
that intercourse occurred.
2. Was there
force or the threat of force? The
evidence suggests that neither actual force nor actual threat of force was used,
and the victim did not physically resist.
However, it is suggested that physical resistance of the victim was not
prudent under the circumstances. The victim
was dealing with a stranger. The
prosecution suggests that the defendant’s placing his hands on the victim’s
throat constituted a “symbol of power” and an implied threat. The defendant doesn’t have to use explicit
threat statements in order to use active force.
3. Was the sexual
act against the will of the victim? The
victim both verbally refused the defendant’s advances and cried.
4. Submission is
not consent.
The
prosecution asks us to put ourselves in the position of the victim and imagine
how we would have reacted in the same situation.
Defense: The defense argues that
there is a lack of evidence of rape. The
defense presents the facts in a light most favorable to the defendant (of
course).
The
defense claims that the facts are subject to interpretation.
I
don’t know that either argument was very focused on the law.
Jury
instructions:
we have an instruction on force, and one on resistance, but resistance isn’t
required if the victim’s safety is threatened.
Jury
deliberations:
The jury attempts to dispose of three elements of the offense quickly: the
intercourse, the fact that it was against the will of the victim, and the fact
that it was without the consent of the victim.
The
jury moves to the element of force or threat of force. At least one juror believes there was actual
force in this case, even though the prosecutor (rightly or wrongly) seemed to concede
that there wasn’t.
The
jury is concerned about whether facts can be interpreted to prove a conviction beyond
a reasonable doubt.
Was
there a threat of force implied in the fact that she asked “if I do what you
want me to do, will you let me go?” and that he replied “yes”? Is this force?
The
jury discusses the significance of the statement above. How might have the defendant interpreted that
statement? What if he had no intent of
raping her when she asked?
Shall
“threat of force” be judged based on the subjective position of the victim, or
the “objective” view of a “reasonable” victim?
Do we judge the victim against a “reasonable person” or a “reasonable
woman”?
Is
the defendant’s response to the victim’s fear a threat of force? Can we tell beyond a reasonable doubt from
the record?
Preliminary
vote: 4-2
guilty. In a real-world jury, the 4 will
try to change the 2, or possibly the 4 would try to change the 2.
Was
the threat of force that the defendant used enough to keep the victim from
resisting? Should the victim have tried
to escape? Did she have a reasonable
chance to do so? Was there a chance for
her to get to reasonable safety?
We
have a vote the changes from not guilty to guilty, and now we’re at 5-1. The rationale is that once the sequence of
events that leads to the actual act starts, she has nowhere to go and nothing
to do.
Final
vote: 5-1
guilty. We have a hung jury.
Comparison
to past “trials”
Every
other year, the vote was either 3-3 or 4-2 to convict. There have always been both males and females
on both sides of the argument. In the
other section, it went 6-0 to convict for the first time. Dressler finds it interesting that the juries
have gone for guilty more than ever before.
Does
it make a difference that we are getting further from the year that these
events actually occurred? Are cultural
attitudes changing?
Post
your comments on TWEN
later.
The
adversarial system and cognitive dissonance
The
defense thought it was a tough job, but that there was enough to work
with. The prosecution thought that it
was a tough job too. Both sides started out
thinking that it was a hard case.
By
the time of the trial, the defense felt more or less the same way about the
case. The prosecution felt strongly
about his case.
In
the past, the attorneys in this mock trial each felt very strongly about their
own case once it came time to get up in front of the jury.
Dressler
says that this often happens in the adversarial system. When you have to take a position that initially
runs against your values, the dissonance that results becomes so great that you
convince yourself that what you must argue is correct.
What
do you do if you don’t believe in your client?
Dressler says that you can’t really do what you have to do unless you
convince yourself that your client is right.
In the adversarial system, two stories are told and the judge and jury
must choose between them.
If
you’re going to do the job, Dressler argues, you better do it right. He says that by the time you get to a jury,
most lawyers reach the point that they really believe that they’re right, at
least insofar as the law is on their side.
Why
this wasn’t realistic
The
timing was phony. Everything would take
a lot longer in real life. Also, the
lawyers would have been involved in jury selection. We didn’t see the witnesses and we missed out
on a lot of other relevant evidence.
Rusk wouldn’t have had to testify.
In 95% of criminal cases, the defendant does not testify, even
when the defendant is factually innocent or the attorney thinks the defendant
is factually innocent.
The
only thing the jury can do is study the defendant’s behavior as he sits at the defense
table.
In
the real world, the attorneys would have made arguments about what jury
instructions should be given. The
lawyers aren’t going to spend much time lecturing the jury on the law. The lawyers know that the judge is going to
do that for them.
The
jury process
The
selection of the jurors can impact the nature of the debate. For example, the foreperson for the jury in
the big section started by taking a straw vote immediately. Different approaches may lead in different
ways. Today, a more structured approach was
taken.
Lawyers
rarely end up on juries because it is feared that a lawyer on a jury will
control the jury and that the others will be lost in the process. Attorneys try to keep “strong-willed people”
off the jury.
A
majority of the class outside the six jurors would have voted to acquit.
Was
there reasonable doubt in this case?
The
jury is supposed to represent the mores of the community. They will use any instructions related to
what is “reasonable” to apply their own personal sense of what is reasonable.
A
jury cannot convict a person just because they don’t like the law. Their conviction can get overturned on appeal
if it is not in line with the law.
Strategy
Dressler
notes that both attorneys tried to put the jurors in their clients’ shoes. The prosecution used the “wallet example” to
argue that the law of rape is wrong.
There is something very different about the crime of rape than the crime
of robbery. If we look at the physical
act of robbery, it is the physical act of taking the wallet from a person. Our natural understanding is that robbery is
never something I want to have happen.
However, sex is something that is sometimes desired and sometimes
not. Rape is rape because of the mental
state of the victim. Therefore, we
apparently need special evidence to show that the sex was unwanted.
Dressler
thinks that defense made the defendant out to be unrealistically innocent. The defense attorney might want to
acknowledge that his client is a creep.
But, he would continue, it doesn’t matter to the law whether the defendant
is a creep or not. The jury is not to
pass judgment about the defendant as a person, but rather to make a
determination of how the law applies to the facts.
Dressler
says that the prosecutor wants to describe the victim as “the victim”, but the defense
shouldn’t use the word “victim” as a matter of strategy. The defense wants to call her “the accuser”
or “that woman” or something like that.
This is pretty much only going to be an issue in rape cases; there is obviously
a victim when you’re talking about murder.
Judging
the victim
One
juror was upset that the jury as a whole focused on what the victim did or
should have done as opposed to what the defendant did or should have done. Dressler says that this is a very telling
point and one of the major criticisms leveled by reformers of rape law. If there is a resistance requirement, then we
are in some sense trying the woman and asking if she resisted adequately.
Can
you have force with consent? In the traditional law, yes.
The
resistance requirement
Where
does the resistance requirement show up in the
“Requiring”
the woman to resist for there to be a successful rape prosecution may actually
increase the risk of physical harm to the woman. So why would the law want to require women to
take risks to their own life? Is it
because all judges hate women? That’s
hard to see.
Maybe
we need to provide notice to the man that the woman is not consenting. Resistance could be conceived of as a form of
notice. Also, we’ll need to prove a mens
rea of rape, though it is a general intent crime. A reasonable mistake of fact would be a defense
to rape. If the woman resists, and the
man proceeds anyway, it vitiates his possible defense of reasonable mistake of
fact.
Another
argument out of the common law is that if a woman is “what a woman is supposed
to be” that the only natural thing for the woman to do is to protect her “virtue”. Therefore, the argument goes, if she doesn’t
care enough about her “virtue” to protect it, then why should we? This probably stinks to us now.
Coughlin
tried to explain the law of rape in terms of the Victorian period and the use
of rape as a defense to adultery. All
forms of fornication (sex outside of marriage) were considered immoral. So if the woman resists, it shows that she
was an unwilling participant in something that was considered a crime on the
part of both parties.
The
common law rule of resistance
If
the man used force likely to cause death or serious bodily injury, the law at common
law did not require the woman to resist. If the
man used less force, then the woman was required to resist. At common law, the woman had to resist to the
utmost to fight the man off.
But
if the woman has to resist, one of two things happens: (1) the man stops, or
(2) the man overcomes her resistance, which constitutes the force necessary to
the offense at common law.
If
we take away the resistance requirement, there is a problem for legislatures: How
much force is needed? Is
the sexual act itself the force?
Force
and threat of force are two separate things.
The discussion was a little confused on this point. Choking is the use of force. The choking could also be included in other
things to suggest what further threat may be.
But the point is that you may have threat of force without any actual
force at all and still have the offense of rape.
The
statement “If I do what you want, will you let me go without killing me?” may
be construed as an implied threat of force based on his saying “yes”. You can fear all you want and that doesn’t
make it a threat. However, the
reasonable implication is that this would be interpreted as a threat.