Criminal Law Class Notes 10/24/03


We have more stuff today than we’ll be able to cover.  We may have to go fast.  Super fast!  Everybody to the limit!


Look at the TWEN comments for the next class.  The next assignment is very big.


We’re moving into a new, long chapter on defenses.


Rape and mistake of fact


We’re finally into the mens rea of rape.  The Sherry case should, in a perfect world, be review.  The issue of mens rea in the area of rape is almost always whether the man believed that the female was consenting to sexual intercourse.  This is mistake of fact, which we’ve already covered.


Rape is a general intent offense.  Thus, we apply a culpability analysis and ask whether the defendant’s mistake of fact was reasonable.  If the defendant’s mistake of fact was unreasonable, we are clear to convict.


MacKinnon thinks the mistake of fact defense is stuuuuupid!  Why is this statement not as silly as it sounds?  We point to the law and say that a rape has not occurred without an actus reus and mens rea.  It’s different to say that someone was “raped” in the actus reus sense than to say that someone committed the crime of rape.  There’s a problem of vocabulary.  When we talk about murder, it would make sense to say that someone was “killed, but not by a murderer”.  There isn’t quite equivalent language for rape, unless maybe we use “forcible, non-consensual sexual intercourse” for the actus reus of rape.


It matters to people whether something was an intentional act as opposed to an accident.


Commonwealth v. Sherry


What would be the level of mens rea required to be guilty of rape at common law?  It would appear that it’s negligence.  If the man should have known that the woman was not consenting, that’s negligence.  That doesn’t mean that unreasonable mistake of fact always implies negligence rather than, say, recklessness.


Rape turns out to be a crime of negligence.  The defendant in Sherry asks for an instruction that requires the defendant to have acted knowingly.  This is wrong based on Massachusetts law, and it is rejected.  “It never hurts to ask!”


What might upset the prosecutor about the actual jury instructions in this case?  The instructions suggest that the man must have intended to have sex against the woman’s will in order to be found guilty, which is wrong as a matter of law.


At common law, there is always an issue of interpreting instructions as to whether a certain mens rea term modifies one or several subsequent actions.


Think seriously about the question of what the mens rea of rape ought to be.  As the definition of the actus reus of rape is expanded to include more and more potentially ambiguous events, the claim by the defendant that “I thought she was consenting” becomes more plausible.  This was not previously an issue under the more narrow rape laws of the past.


One view is that as soon as a woman says “no”, the defendant proceeds at his own risk.  Any belief that the “no” didn’t mean “no” would be deemed unreasonable mistake of fact as a matter of law.  Is there a time-framing issue?


Dressler’s problem is that once you say a mistake is unreasonable no matter what, that’s strict liability.  Once you hear the words “you assume the risk”, it’s strict liability.  That would convert rape to a general intent crime to a strict liability crime.  You’re going to basically get in trouble for wanting to have sex with someone.


There is a movement going to try to make rape into “sort of” a strict liability crime.  It’s getting increasingly difficult for a defendant to get a mistake of fact claim to a jury.


There’s also a trend in the oppose direction.  Regina v. Morgan, the so-called “kinky wife” case, is a House of Lords opinion.  In the United Kingdom, there is no one “opinion of the court”.  In the House of Lords, each Lord writes a separate opinion.  One of them might say that they agree with another Lord, but then they’ll go on to write more.  The analysis of these opinions is very tough, especially if you’re trying to figure out what “the law is” in light of the opinions.


What went on here?  The husband of the victim told the other men that his wife will resist, but that’s just a game for her and they need not mind it.  This was false; she was really resisting.  The perpetrators argued that she was consenting because the husband told them she was consenting.


It seems to have come out that this was an unreasonable mistake of fact.  Under the traditional rule, the defendant should be guilty.  But by a vote of 3-2, the Lords disagreed.


Let’s say that we define rape as “intentional sexual intercourse by a male with a female without her consent”.  Why does Lord Hailsham say that there is no room for a mistake of fact defense?


It is argued that the defendant intended to have sex with the victim with her consent.  In Lord Hailsham’s mind, rape is a specific intent crime because “intent” modifies the attendant circumstance of “without her consent”.  If we have a specific intent crime, we use elemental analysis and ask whether the mens rea of the crime was proven or not.  In other words, does the mistake of fact negate the required mens rea of the crime?


Under this view, Lord Hailsham makes sense.  If we use an elemental analysis, then the prosecution must prove beyond a reasonable doubt that the defendant intended to (1) have sex, and (2) do with without the woman’s intent.


Due to this decision, rape becomes a specific intent crime in England for a short time.  When the public found out about this, they got mad a demanded a new statute.  Parliament backed away from Morgan.  So, England is moving somewhat in the opposite direction from the United States.


Under the Model Penal Code, since no mens rea term was mentioned in the rape statute, the level of mens rea required would be P, K, or R, just like in the English law.


Now we shall let mens rea rest in peace.  But Dressler says we should think about what the mens rea should be for rape.


Rape shield laws


The basics – Here’s the problem these laws are designed to fight: the defense will try to get a bunch of evidence out to try to make the alleged victim look like a “slut”.  It can be argued that this evidence is relevant because it would go to show that the alleged victim has consensual sex a lot and therefore could reasonably be seen to have had consensual sex in this particular case.  But even when you can make that argument, the character of the alleged victim is damaged and the jury becomes prejudiced.


This will be awful for the woman.  Also, why would a woman ever report the crime?


We might admit evidence that the woman in the Kobe Bryant case had consensual sex on other occasions, but under rape shield laws, we won’t admit evidence that she had consensual sex with others.


The first question in any criminal or civil case is whether or not the evidence is relevant.  If it’s not relevant, it doesn’t belong in the trial.  Is it relevant that the victim had blond hair?  Is it relevant that the defendant wore a beard?  You can imagine situations where both are relevant though in many cases these facts would not be relevant.


All that relevant means is that there’s something about those facts that would move the rational factfinder towards the side of the prosecution or defense.  Some facts are hugely important, and some are just barely relevant.


The second question is whether the probative value of evidence outweighed by other factors?  For example, in the O.J. Simpson case, the prosecution wanted to introduce evidence that Simpson beat his wife.  Is that evidence relevant to whether he killed her?  Maybe it is relevant.  But is its relevance outweighed by other factors?  In Criminal Procedure, you learn that prior bad acts are not admissible as evidence to the jury because they may be prejudicial.  If the evidence has a small amount of factual significance versus a big amount of prejudice, then that evidence doesn’t get admitted.


There may also be a factor of time consumption.  How long will it take to put on the evidence?  If it will take six hours to put on this evidence, but the probative value is low, we might boot it out.


Except for rape shield laws, the admissibility of evidence is determined primarily by the judge on a case-by-case basis.  What is unusual about rape shield laws is that the legislature has found that certain kinds of evidence are either always irrelevant or always inadmissible based on public policy considerations.


Is there a problem here?  The Sixth Amendment provides the defendant a constitutional right to cross-examine his accuser and call witnesses on his own behalf.  To some degree, rape shield laws undermine the Sixth Amendment.


Almost all rape shield laws have some exceptions that bow to the Sixth Amendment.  These exceptions allow the judge to decide that in a particular case, the defendants’ need to have certain evidence introduced trumps the victims’ interests protected by the rape shield laws.


The Supreme Court has held that Sixth Amendment rights are not absolute.  It has never been thought that you can cross-examine your accuser without any bounds.  Not just any cross-examination is allowed.


Consider the TWEN example and consider as a matter of policy whether the evidence mentioned should have been admitted.


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