Criminal
Law Class Notes
State of New Jersey in the
Interest of M.T.S.
We’re
finishing off the actus
Note
that M.T.S. was unanimous. Remember Dressler’s “yin and yang”
comment. Given how far this case takes
rape, wouldn’t we expect that at least one judge would disagree?
No
other court has yet followed
This
is a classic he said, she said story. What
happened according to the alleged victim?
She awoke to find him sexually penetrating her and forcibly made him
stop.
He says that they consented to
sexual activity and that she never went to sleep. He does acknowledge that she slapped him and
that immediately afterwards the sexual act ended.
So
we have two versions of the facts. In a
perfect world, we want to see the witnesses.
But Dressler says that most classes feel predominantly that M.T.S. is
more believable than C.G.
Note
that this is a juvenile case. In these
cases, there is frequently no right to trial by jury. Therefore, this is a bench trial.
When
juries go into deliberation, we don’t know what facts they believed. However, we are told in this case what the trial
judge believed and didn’t believe. Who
did the judge believe on the facts? The judge
didn’t believe either person fully. The judge
found that C.G. was not asleep and consented to petting but did not consent to
intercourse. The latter is the key
finding of fact.
The
The
·
“Sexual assault” is the reformist label that has
been attached to the crime that used to be called “rape”.
·
This statute doesn’t require severe personal injury
in order to sustain a sexual assault conviction.
·
The statute does not use the word “consent” or the
phrase “without consent”. Instead, the statute
uses the word “coercion”. Why might the statute
use the word “coercion” rather than the phrase “without consent”? The feminist critique was that too much time
was being spent putting the woman on trial, and that instead the defendant
should be put on trial.
·
The spousal immunity rule is eliminated. Husbands are not protected from being
convicted of sexual assault against their wives. A husband who committed the same acts stated
in this case against his wife would be just as guilty as M.T.S.
·
The gender of the victim, and arguably the perpetrator
is not specified in the statute.
·
The statute says “penetration” rather than “intercourse”. At common law, vaginal intercourse was the
only conduct that constituted rape.
Therefore, all other forms of sexual penetration fell outside the rape statute
and there had to be another crime to deal with it.[1]
Do four
“penetrations” constitute four different counts of rape? From a defendant’s perspective, that’s a huge
issue. The case law has wrestled with
this problem.
For
example, let’s say a robber robs four different registers at one store. Is that one count of robbery or four?
What
if someone steals envelopes from the post office? He is guilty of stealing one bag (one count)
or 400 counts of theft? Isn’t that a big
difference?
What
if someone steals your wallet? Is taking
the whole wallet at one time one count or multiple counts?
Part
of the answer is found in legislative intent: who do we consider to be the
victim? How many victims were affected? If you rob four cashiers, is each cashier a
victim, or is the store the victim?
In M.T.S., we only have one
victim. On the other hand, the case law
makes the distinction between one transaction and multiple transactions. If the defendant penetrated the victim, left
for an hour, came back, and penetrated the victim again, that would be two
different counts.
Could
there be rape where penetration was made by consent but the withdrawal of the
penetration did not follow immediately after the withdrawal of consent? Courts and authorities are split.
The
defense acknowledged that the intercourse was non-consensual. However, the defense still argues that the
conduct does not constitute sexual assault.
The defense argues that there must be force other than the sexual
penetration itself. The New Jersey Supreme
Court disagrees, finding that the non-consensual sexual act itself constituted
the necessary force.
So
what is the new rule of sexual assault in
We’ve
gone from Alston to Estrich’s “no means
no” to “silence means no”.
If
you don’t get permission, it’s sexual assault.
What
constitutes freely given permission?
What would be the impact of alcohol, for example? The
What
about if you ask over and over again for sex?
Should
the “wall come down” as soon as the first “no” occurs? What’s the impact on “romance”? Can you whine and nag for sex? If you did, would the permission be “freely
given”?
Statutory
interpretation
Did
this court interpret the statute correctly?
Is this a good decision as a matter of public policy? It may be suggested that the court has gone beyond
the plain meaning of the statute. Why
did the legislature include the words “physical force”? If the legislature meant what M.T.S. says it meant, how
would they have said it? Why didn’t the legislature
just use the language that the court itself uses?
Hasn’t
this court taken out the “physical force” requirement and put with “without
consent”? The legislative history suggests that part of
the point of the statute was to take the focus off the alleged victim. The court seems to potentially put the focus back
on the victim.
Dressler
has not found a single scholar who has found that the Supreme Court of New
Jersey got the statutory interpretation right.
Does
“without consent” necessarily mean “against one’s will”? When we ask whether something was done
without consent, aren’t we inquiring into an internal state of mind of the
alleged victim?
“Permission”
Dressler
says that permission is an “externalized” form of consent.
In
Is
this a good way to define criminal sexual assault? How could the defendant prove that the alleged
victim gave permission? Imagine how
humiliating the trial has just become!
But how else can the defendant defend himself? This sends a message to women about whether
they want to bring charges. The Kobe
Bryant case shows just how embarrassing a rape prosecution can be to a woman.
M.T.S. stands alone. We don’t know what it means, and we don’t
know what other states might argue it.
In
fact, how did this case get to the prosecutor? We suspect that the mother may have gotten upset,
even if the facts were the way M.T.S. claimed they were. The mother may have had a misunderstanding of
the law such that she had no idea that this would become a rape case. Would the mother have ever brought this case
if the mother knew how the prosecutor intended to use it?
Under
what circumstances will a female be willing to come forward? What are the chances that a wife will bring a
case of marital rape to a prosecutor other than in the context of a marriage
breaking up? What kind of case will this
statute be used for as a practical matter?
“Freely
given”
Consider
the Schulhofer hypothetical in Note 4, p. 404.
A man threatens to kick a woman out of the house if they don’t have sex
more often. Is her permission freely
given? Did the man make an ultimatum? What could the man have done
differently? Isn’t it necessary that he
doesn’t have sex with the woman anymore?
Should the guy just kick her out?
Should the law give her a choice?
Also
consider the Antioch Sexual Offense Policy. Yeah, consider it.
What
if a woman traded sex for grades? Was
her permission freely given? Is there
unequal bargaining power? Does it depend
on whether there is any harm from not giving permission? Is there a difference between a “threat” and
an “offer”?
Is
it for the law to say how much a woman should value her sexual autonomy? How much do we value freedom? How much do we value allowing people to make
choices that will hurt them?
Schulhofer
made the argument that the question should be whether the ultimatum was lawful
or unlawful. A lawful ultimatum results
in freely given permission. It’s
perfectly lawful for a man to kick anyone he wants out of his house. On the other hand, a professor is in the
wrong if he offers to raise a grade if a student has sex with him.
[1] Should
there be a different statute to protect the right of a woman to determine when
to get pregnant? Not all of these
activities may result in pregnancy. Common
law rape explicitly could result in pregnancy.