Criminal Law Class Notes
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
It
matters to people whether something was an intentional act as opposed to an
accident.
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
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
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.
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
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.