February 11, 2008
By Rinaldo Del Gallo, III, Esq.
BerkshireFatherhood.com
Click HERE to contact Attorney Del Gallo.
MAJOR CHANGE IN THE LAW OF RAPE, AND THE LEVEL OF INTOXICATION NEEDED FOR LACK OF CONSENT
For years now I have been warning that the law on rape is changing so that when one engages in highly participatory sex with a woman, there will be deemed a lack of consent if she is intoxicated. A recent decision renders this prediction an act of pure clairvoyance. Trends in the law of rape for which I have long been prognosticating have now become the law in Massachusetts.
A major case has come down concerning what constitutes the crime of rape when there has been the use of intoxicating substances. Those who know young men in dating relationships would be doing them a great favor by giving them a copy of this article.
AN ADVISORY
While it can be said that “a little tipsy†will not render a woman incapable of consent, it is equally clear that it cannot be determined how drunk is drunk enough. It is certainly our advice to not have sexual intercourse with a woman that is so drunk that they would could be arrested for driving while intoxicatedâ€â€which under present law is not very drunk at all.
RECENT MASSACHUSETTS CASELAW ON HOW DRUNK OR HIGH A WOMEN MUST BE FOR A VALID RAPE COMPLAINT
The law of rape provides fodder for many controversial issuesâ€â€rape shield laws, requirements of proof, what should be admissible testimony when the statements were made out of court but the putative victim is available to testify, and the level of prevalence of false allegations are just a few that can result in heated arguments, all of which are not addressed in this article. But one of these issues is on just how intoxicated someone has to before there can be a failure to provide consent. A recent case which may be viewed at the Berkshire Fatherhood Coalition website, BerkshireFatherhood.com, Commonwealth v. David Blache, discusses the amount of intoxication which will render a woman unable to consent. In an old 1870 case, Commonwealth v. Burke, it was ruled that if a women was rendered “wholly insensible†due to intoxicating liquors, she could not give her consent. While to many this would be a clear statement that a women means to be unconscious or close to it, the court took the view that “wholly insensible†could simply mean some type of severely impaired judgment. Just what constitutes “wholly insensible†as articulated in Burke was the sole focus of the opinion.
The putative rape victim was highly intoxicated, but very far from being unconscious or on the verge of being unconscious. The judge instructed the jury that if the woman was “wholly insensible,†there could be no consent, and since sexual intercourse was not an issue, there must be a finding of guilt. The jury replied to the judge, “Could you please clarify the definition of ‘wholly’ insensible?” The judge refused to do so, stating the directions were clear enough, and soon the prosecution and defense were in a war in the appellate courts as to what it means to be “wholly insensible.†The case made it the Massachusetts Supreme Judicial Court, Massachusetts’s highest court.
BEHAVIOR OF PUTATIVE VICTIM PRIOR TO RAPE
Prior to having sexual intercourse with the Defendant, the rape complainant was hardly unconscious or close to unconscious. Even the majority wrote as follows:
According to [three witnesses and the defendant], the complainant exhibited sexually aggressive behavior toward the defendant. She touched him, tried to kiss him and “grab[] his crotch,” asked him if he wanted to have sex with her, licked the windows of his police cruiser, and pulled down her pants to show the defendant her genitals. Witnesses also testified that at this time she was still drunk; she slurred her speech.
THE REJECTED DEGREE OF INCAPACITY
The Blache majority of the Massachusetts Supreme Judicial Court ruled,
“The defendant’s characterization of the degree of incapacity required to trigger the Burke rules regarding proof of force and nonconsent is too restrictive. The law does not require that the complainant have been rendered ‘unconscious or nearly so’ before she may be deemed past the point of consent.â€Â
The majority found ambiguity in the words “wholly insensible,†which to the defense’s credit does appear to have the meaning they urgedâ€â€Ã¢â‚¬Å“unconscious or nearly so.†The majority did not seem to think it clear that “insensible†meant pretty gone.
Justice Spina, joined by Justice Cownin, appeared to embrace the definitions proffered by the defendants. In a wise dissent, Justice Spina noted that the Burke court used phrases such as “utter stupefaction†or a “state of unconsciousness.†Judge Spina wrote:
“The complainant here also testified that she remembered sitting in the front seat of the police car before being raped, and pushing buttons that activated the siren. She recalled that the defendant was angry, and that he told her to sit in the rear seat of the police car and not touch anything. She remembered that the defendant had removed his duty belt, climbed into the rear seat of the police car, and removed her clothing. Within thirty minutes, the complainant telephoned police and reported she had been raped by a Methuen police officer. She was taken to a hospital less than one hour later, where a nurse recorded her condition as ‘agitated,’ ‘upset,’ and ‘distraught,’ but ‘alert and oriented.’ This evidence is insufficient to meet the standard of showing the complainant was ‘wholly insensible,’ or in a state of ‘utter stupefaction,’ or a ‘state of unconsciousness’ such that she was incapable of consenting.â€Â
Imagine being taken to a hospital one hour after the alleged rape, and the nurse stating that the her condition was “alert and oriented.†If the nurse was a credible witness, and it is hard to believe that she was liar, imperceptive, or unqualified, it is hard to image how such a person could be so drunk as to be unable to give consent. Judge Spina said in his dissent:
Admittedly, the evidence shows she was highly intoxicated, but this is not enough. The evidence must show that the complainant’s “state of insensibility” was such that she “had no power over her will” (emphasis added). Commonwealth v. Burke, supra at 379. In effect, there must be a showing of total incapacity to consent.
The thrust of the Blache majority is that a drunk woman, even one engaging in highly participatory sex, has no power over her will, and cannot control what she is doing.
CIRCULAR DEFINITIONS AS TO WHEN ONE IS TOO DRUNK TO CONSENT THAT PROVIDE LITTLE GUIDANCE
The Blache majority did little to clarify what “wholly insensible†meant, ruling:
[F]or the Commonwealth to meet its burden of proof on the complainant’s nonconsent by establishing that she was incapable of consenting, the Commonwealth must show not simply that she lacked sobriety or was intoxicated, but that as a result of the alcohol and drugs she consumed, the complainant’s physical or mental condition was so impaired that she could not consent.
We can glean for this sentence that merely being drunk or high will not render consent invalid. But the Blache majority’s definition of “proof of nonconsent†is the acme of circularity and defining a term by itself. “Proof of the complaintant’s nonconsent†is proved by showing a mental capacity that was so impaired that “she could not consent.†There must be some point in the law where one’s state of mind is so impaired that they cannot legally be considered to have consented to intercourse, but defining that point as the point where one’s state of mind is such that they cannot legally be considered to have given consent is obviously unhelpful, circular, and raises serious procedural due process issues for want of definitions. Proof of nonconsent due to intoxication is merely defined as point reached when there is nonconsent due to intoxication. How drunk or high is that?
The majority has a moment where they appear they will announce how drunk or high one has to be before there is a lack of consent, clearly fails to do so, and then acts as if they had articulated such a standard:
We conclude that an instruction concerning capacity to consent should be given in any case where the evidence would support a finding that because of the consumption of drugs or alcohol or for some other reason (for example, sleep, unconsciousness, mental retardation, or helplessness), the complainant was so impaired as to be incapable of consenting to intercourse. If the jury find the Commonwealth has proved beyond a reasonable doubt the complainant’s incapacity according to this standard, that finding satisfies the element of nonconsent, and as a corollary, the Commonwealth need only prove the amount of force necessary to accomplish intercourse.
What standard for impairment? The “element of nonconsent†is merely to be “impaired as to be incapable of consenting to intercourse.†One can imagine the “Model Jury Instructions†after this case reading:
The crime of rape is committed by the intentional penetration of the vagina by the penis however slight, without the woman’s consent.
If the complainant was under the use of drugs or alcohol so as to make her incapable of consenting to intercourse, there can be no consent.
Juries will still be confronted with the basic question, “How drunk or high is too intoxicated to consent?†That line, unanswered by the jury instructions, will surely be based upon the vagaries of the juries personal perception of when criminal liability should attach. Many people believe that one should not have sex with a women that is intoxicated at all, especially if this person is not someone they know and who might regret it in the morning. Blache just does not make the effort to answer questions regarding the level of intoxication needed to provide the public with reasonably clear lines as to what is and what is not criminal behavior. In lawyer speak, it is “unconstitutionally vague.†She’s too drunk when she’s too drunk is not definition enough.
There is one other problem. In order to “simplify†jury instructions, the part about “the Commonwealth must show not simply that she lacked sobriety or was intoxicated†will unfortunately likely be omitted from jury instructions with a judge claiming that it is “implied†with the lack of consent. This would be plainly unfair.
While eschewing the clear lines of the defendant and the dissent which seem to be well-grounded in precedent, no definition is provided when how drunk is drunk enoughâ€â€other than the circular “its drunk enough so that you can’t consent.†Had the Blache majority answered the question, “How drunk does the complainant have to be before she can not longer be said to have given consent?†without use of the word “consent†or a synonym of “consent,†they would have provided an opinion much more useful for a lawyer trying to give advice, and the Berkshire Fatherhood Coalition suggest the court do so in future opinions. The “clarifying instruction†is not clarifying at all, since it has not been explained how drunk the putative victim needs to be before she is deemed too intoxicated to consent, the very question that stumped the jury in the first place when it inquired what is meant by “ ‘wholly’ insensible.â€Â
We do know this. The Blache majority strongly suggested that one is intoxicated enough when the evidence indicates “a level [of intoxication] likely to produce disorientation, loss of judgment, impaired perception, lethargy, imbalance, slurred speech, impaired comprehension, and confusion.†That is somewhere beyond the word of “buzz†and into the area of slight intoxication. The Blache majority also added, “Although the defendant points to countervailing evidence that the complainant was able to walk steadily, talk comprehensibly, dial the telephone, and make decisions regarding having her vehicle towed, the weight of such evidence was for the jury to determine.†Thus, the evidence also tended to indicate she was not inebriated. While I would rather the court define how drunk or high one needs to be before consent may not be considered valid, our guess is that when a women consents to sex (with no other mental issues) and is only buzzed or slightly intoxicated, consent is valid. But if speech starts to be slurred, her walking or movement becomes laborious, she makes mental mistakes she would not ordinarily make, she is too drunk or high to consent. As Judge Spina said in the last sentence of his dissent, “In the future we can expect the Commonwealth to try rape cases, as here, like drunk driving cases.â€Â
MISTAKE OF FACTâ€â€NOT KNOWING SHE WAS TOO DRUNK
There is one bright side. Now that being unconscious or close to being unconscious is not the standard (the Blache majority would claim this never was the standard and they are not making new lie), not knowing the woman was too drunk to consent will be a mistake of fact that will work as a defense. The Blache majority noted, “Massachusetts has not recognized the ‘defense’ of mistake of fact in rape cases generally.†Such arguments might be, “I didn’t know she was underage,†or “even though she said ‘no,’ I thought she liked it and meant ‘yes’ because she was moaning pleasurably so much and the ‘no’s’ were half-hearted.†(The law that a woman not under threat or duress must exhibit some substantial resistance has long been disposed as a barbaric relic of the past.) This is highly controversial since many claim that men honestly mistake having consentâ€â€many advocate that such mistakes are either rare or even an impossibility.
Under such reasoning that there cannot be a defense of mistake of fact (which the majority claims that their opinion does not embrace), there would be no mistake of fact defense by believing that a woman was not too drunk to consent. If a mistake as to age is no defense, if a mistake as to consent is no defense, a mistake as to the level of intoxication should be no mistake. But the logic was not so extended: the majority did recognize a defense in erroneously overrating the victim’s sobriety (which is a mistake of fact argument):
“If the complainant’s capacity to consent is again at issue, the defendant will be entitled to an instruction that, in order to sustain a conviction on a theory of incapacity to consent, the Commonwealth must prove that the defendant knew or reasonably should have known that the complainant’s condition rendered her incapable of consenting.â€Â
While there is no way of knowing what the future holds, these may be called “Blache instructions.â€Â
SPINA DISSENT
Under the latest interpretations of the Massachusetts Supreme Judicial Court, a women that is very far from being unconscious, or utter stupefaction, perhaps just a little bit more than tipsy, can lack the requisite capacity to consent to sexual intercourse. Sagaciously, Judge Spina stated in his dissent in Blache:
“I believe that this case significantly changes the law of rape. Hereafter, a person who has sexual intercourse with one who is highly intoxicated but capable of interacting with others, a common occurrence, does so at great risk that when the effects of the alcohol wear off, the other person will claim that intercourse occurred without consent. Moreover, where the standard had been virtual unconsciousness, a defendant must have known there was no consent.â€Â
THE REJECTION OF A RULE THAT HAS BEEN CLEAR AND WORKABLE
Before, there was line, not perfectly delineated, but close to a bright line rule. Now there is obfuscation. As Judge Spina said in his dissent:
The standard of “wholly insensible,†“utter stupefaction,†and “unconsciousness,†by which a complainant has heretofore been deemed to be incapable of consenting to intercourse, is a fair and workable standard from which the court today departs in favor of a standard that needlessly complicates certain rape cases, and has great potential to produce unfair results for defendants and unwanted intrusions into the private affairs of complainants.
In the intellectual ping-pong match that can be found in the footnotes of legal opinions (there were 22 in total), footnote 12 of the Blache case read, “Justice Spina’s separate opinion asserts that Burke does require unconsciousness, and that the Burke opinion used the phrases ‘wholly insensible,’ in a state of ‘utter stupefaction,’ and in a ‘state of unconsciousness’ interchangeably.†The Blache majority went on, unconvincingly in our opinion, to suggest such was not the case. The majority then went on to site two cases, one from 1989 and one that is a companion case holding that “the evidence fell short of suggesting the victim was in a state of stupefaction or unconsciousness.” It is our opinion that the Spina dissent expressed a better sense of “wholly insensible†in the case law.
My Random House Dictionary defines “insensible†as:
1. incapable of feeling or perceiving; derive of sensation; unconscious; 2. [inapplicable] 3. unconscious, unaware, 4. not perceptible by the senses
In short, if “insensible†means the aforementioned, what does “wholly insensible†mean? The Blache majority is imputing ambiguities in the word “insensible†when there is none.
MAN IS DRUNK. WOMEN IS DRUNK. CONSENESUAL SEX.
In many instances, sex is engaged in by two intoxicated people, rather than as in the Blache case where the male was sober. The situation is joked about by many a stand-up comedian. Take this common situation:
EXAMPLE 1
1. A man and women go to a bar and drink.
2. The man has a few more drinks, commensurate with his weight.
3. Both are equally drunk.
4. Both have blood alcohol content levels of .2%. (.08% is legally drunk in Massachusetts.)
5. Both have substantially impaired judgment.
6. The couple has sexual intercourse with mutual consent.
7. When morning comes, the woman claims she was raped.
Has the man raped the woman?
Under the old rule, or as Judge Spina would call it in his dissent, “The old standard under Commonwealth v. Burke,†there was no comparable problem. Unconscious or nearly unconscious men almost invariably never (and many would argue that it is a complete impossibility) have sex with women. Men with impaired judgment due to drugs or alcohol have sex with women, but not unconscious or nearly unconscious ones. Because women do not have to have erections and can have intercourse passively, unconscious sex is not a physical impossibility. Thus, there was no need to think about the quandary of having to making a women liable for sexual intercourse with men when the male is unconscious and the women is sober. There was also no need to think about the quandary of having to figure out who to make liable when there is sexual intercourse when both parties are unconscious or near unconsciousâ€â€sex just can’t happen that way, barring some bizarre situations that will not be mentioned in this article that have never been proven to have ever occurred.
But a very drunk man can have sex with a very drunk woman. And that presents a conundrum. (Rape is only describe as “a person†not a man under Mass. Gen. L. c. 265 22.) If a woman has drank so much that she can no longer have said to have validly consented, and the man is equally as drunk, has the women been raped and does the man have a defense? Or have they raped each other? Or has there been no rape at all? The idea that one can rape an otherwise competent person because they are intoxicated who is engaging in highly participatory sex creates problem after problem.
Judge Spina spelled this problem out:
The court makes clear that, as provocative as the evidence shows this complainant had been, the evidence also shows that her level of intoxication warrants a Burke instruction. This places a defendant who is as highly intoxicated as the complainant in the anomalous and unfair position of defending against evidence of a complainant’s mental state, admitted in evidence to show the complainant’s incapacity to consent to intercourse, an element of the Commonwealth’s case, but unable to present the same type of evidence on the question of his or her own intent to have intercourse. See Commonwealth v. Troy, 405 Mass. 253, 262-263 (1989) (intoxication has no mitigating effect on general intent to have intercourse or other elements of rape charge). Where the defendant’s intent to have intercourse and the complainant’s intent not to have intercourse are both elements of the Commonwealth’s proof, and where the intent to have intercourse either was mutual or it was not, the effects of intoxication should apply equally to the respective intent of each party to the intercourse. This should be so because the question of fact to be determined as to each is qualitatively the same: Was intercourse intended? After today, however, the concept of diminished capacity and its relative, specific intent, see Commonwealth v. Henson, 394 Mass. 584, 592 (1985), will apply to the mental state of a rape complainant, but not to the mental state of a defendant.
MAN IS DRUNK, WOMAN IS SOBER. CONSENESUAL SEX.
EXAMPLE 2
1. A man and women go to a bar and drink.
2. The man gets drunk, has a blood alcohol content levels of .2%. (.08% is legally drunk in Massachusetts.)
3. The male’s judgment is substantially impaired such that if here were a woman, under Blache, he would be considered too drunk and unable to consent.
4. The woman is completely sober.
5. The couple has sexual intercourse without the woman’s mutual consent.
6. When morning comes, the man claims he was raped by the woman.
Can a woman rape a man? Prior to Blache, this was impossible (or nearly impossible) if a man was of suitable age to consent and had not mental health issues. A woman would have a very difficult time getting an unconscious man to get an erection and perform. Many men, however, if not unconscious, may still get an erection and still have sex with a woman though well intoxicated. Some men can get an erection even when they are extremely inebriated.
EXAMPLE 3. MAN IS DRUNK, WOMAN IS SOBER. NON-CONSENESUAL SEX.
1. A man and women go to a bar and drink.
2. The man gets drunk, has a blood alcohol content levels of .2%. (.08% is legally drunk in Massachusetts.)
3. The males judgment is substantially impaired such that if here were a woman, under Blache, he would be considered too drunk and unable to consent.
4. The woman is completely sober.
5. The couple has sexual intercourse.
6. When morning comes, the woman claims she was raped by the man
Does the fact that the man was so intoxicated mean that he could not have “consented†to sex and that his act of having sex was not “voluntary†and that “he could not be responsible for his choices� Can it survive equal protection analysis that when a women is sufficiently drunk, any seemingly voluntary conduct “doesn’t count†such that there is rape, but when a man is sufficiently drunk, his seemingly voluntary conduct “counts†and there is rape? Put another way, why does the woman’s intoxication do away with the specific intent to have sex such that there is rape, but the man’s intoxication will not do way with the specific intent to have sex so there is not rape?
EXAMPLE 4: UNDER-AGE BOY IS SOBER. WOMEN IS DRUNK. THERE IS NON-CONSENSUAL SEX AND BOY FORCES HIMSELF ON WOMAN. UNDER-AGE BOY IS CHARGED WITH RAPE.
This is easy enough. The boy has raped the woman.
EXAMPLE 5: UNDER-AGE BOY IS DRUNK. WOMEN IS DRUNK. THERE IS CONSENSUAL SEX. WOMAN IS CHARGED WITH RAPE.
Under Troy, it will not matter that the woman was drunk when she sought to have sex with boy. The women should be guilty of rape.
EXAMPLE 6: UNDER-AGE BOY IS DRUNK. WOMEN IS DRUNK. THERE IS CONSENSUAL SEX. UNDER-AGE BOY IS CHARGED WITH RAPE.
Notice that this is the exact same situation as in Example 5, with the only difference being who is charge with the rape. Since the boy cannot use his intoxication to dispel the specific intent to have sex, he did intentionally penetrate the woman. Since the woman was drunk, under Burke, she could not consent to sex and her lack of sobriety is relevant.
As Judge Spina stated:
If this complainant had had intercourse with a willing and eager child under the age of sixteen years, in all likelihood she would have been charged with statutory rape, and evidence of her sobriety would not have been admitted because it would not have been relevant to her intent to have sexual intercourse. Commonwealth v. Troy, supra. However, if the prosecutor decided to charge the child with rape, the degree of the complainant’s sobriety short of unconsciousness now has significance and hereafter will be admissible on the issue of consent.
Notice in Example 5, which is exactly the same as Example 6 save for who is being charged for rape, the woman’s sobriety was not relevant. Same fact pattern. Boy has sex with drunk woman. If woman is charge with rape, her intoxication does not matter under Troy. If boy is charged with rape under the very same fact patter, her intoxication now matters under Burke.
WHY THE CRAZY OUTCOMES IN THESE PAST EXAMPLES?
Justice Spina explains:
By accepting what was essentially the Commonwealth’s argument in this case, evidence of intoxication now may be offered to show that the complainant (but not the defendant) lacked the capacity to intend intercourse. Essentially, the Commonwealth may now show the complainant lacked specific intent to have intercourse. The defendant’s intent remains tethered to the law concerning general intent, although the focus of the case for the defendant is the mutuality of intent to have intercourse. This case changes the focus from what was once an easily ascertainable objective fact, i.e., unconsciousness, to a fact that, as was seen in this case, requires expert testimony. It also may well expose complainants in some cases to disclosure of medical and mental health records, and even examination by a physician, including, but not limited to, a psychiatrist, or a psychologist. This was not necessary under our prior law.
THE ANIMAL HOUSE EXAMPLE
Everyone remembers that scene in Animal House where Clorette DePasto, the under-aged daughter of the Mayor Carmine DePasto, in the small town where the Delta Tau Chi House is located, passes out at a toga party. Lawrence, who is pledging the fraternity and has been given the name “Pinto,†has an angel and a devil appear on his left and right shoulder respectively, arguing whether Pinto should take advantage of the girl. In the end, Pinto takes the young girl home in a shopping cart. We all know had Pinto taken advangage of the unconcious girl, that it would have been rape.
http://www.youtube.com/watch?v=M573fOeBqlI
(warning, this has explicit language)
What is rape now in Massachusetts when intoxicating beverages are involved? I cannot tell you. If one takes advantage of girl that is “wholly insensible,†or in “utter stupefaction,†or “unconsciousness,†that certainly constitutes rape in Massachusetts, and has been considered so since the 1870 Burke decision. But how much less than that is anyone’s guess.
Ironically, the court concluded (towards the beginning of the opinion):
We conclude that the judge’s instructions failed to explain adequately what must be established about a complainant’s condition before the complainant may be deemed incapable of giving or withholding consent.
I conclude so did the Massachusetts Supreme Judicial Court opinion. All we know is that at some point, which has not been roughly approximated by the Blache majority, a woman is too drunk too consent. The vagaries of juries, personal prejudices when it is no longer gentlemanly to have sexual intercourse because it is taking an unfair advantage, will fill the void where definitions and guidelines were not provided.
But under the Blache majority ruling, not only would it be rape with a passed out Clorette DePasto, but every woman that had more than four beers at the toga party and had slurred speech and impaired judgment.
EXCUSE ME, I WOULD LIKE TO HAVE SEX. DO YOU HAVE A LAB TECHNICIAN AVAILABLE?
Since Justice Spina said is so well, I will add very little:
Moreover, where the standard had been virtual unconsciousness, a defendant must have known there was no consent. Under the standard announced today, a defendant could not possibly know the complainant was in an incapacitated state that prevented giving or withholding consent. Indeed, in this case, the Commonwealth relied on scientific analysis of the complainant’s blood alcohol level and expert testimony to show a state of mind that the court holds warranted a Burke instruction. If expert testimony is needed, a defendant could not possibly know, based on his or her untrained observations of the complainant’s sobriety alone, that the complainant was incapable of consent.
Everyone knows Clorette DePasto was not fair gameâ€â€that would be rape. But for every other woman at the Animal House Toga Party, that would require an independent analysis regarding levels of intoxication that are very hard determine at the time of intercourse.
CHANGING THE LAW BUT PRETENDING NOT TO
The majority wrote:
[I]n cases after Burke, instructions used by trial judges (and implicitly approved by appellate decisions) have been less than clear in defining what must be shown in order for the jury to find the complainant was incapable of consenting, particularly in relation to the complainant’s consumption of alcohol and drugs.
Nothing could be further from the truth. The case law was lucid clear. “Wholly insensible†mean unconscious or nearly unconscious. “Utter stupefaction,” and “unconsciousness†have known meanings. It meant a complete incapacity to consent in any manner. It meant a passed out Clorette DePasto at the Delta Tau Chi “Animal House,†or someone nearly as close to passing out.
The majority did not want want to resolve an ambiguity. They wanted to change the law so that drunk women, even highly provocative and participatory women, can become rape victims to otherwise consensual sex.
