It WAS rape

Here is an important fact to consider (in New York State) if a man and woman have sex and either party has been drinking it is rape. Consentual or not it is rape. I’m not saing I agree with this - I do NOT - but if you and a girl go home hammered and the next day, or two days later for last matter she regrets what she did then you are screwed. (No pun intended.) Just some food for thought.

Yet another reason why I will never ever ever live in New York…

When push comes to shove, all this California Supreme Court decision does is clarify the law of California that a rape can occur even if consent is initially given – a point that the Majority, the dissent and even the defendant agree on. The case actually does not really have any wide-ranging ramifications for what is sufficient for a defendant’s knowledge of withdrawal of consent. Indeed, the majority opinion states: “Although the dissent here would prefer more guidance for future cases, this is an appeal from a juvenile court adjudication rather than a trial by jury, and the briefing does not address what pinpoint instructions, if any, might be appropriate in these withdrawn consent cases. Accordingly, we do not explore or recommend instructional language governing such matters as the defendant’s knowledge of the victim’s withdrawal of consent, the possible equivocal nature of withdrawal, or the point in time at which defendant must cease intercourse once consent is withdrawn.” As can be seen, the issue actually addressed by the California Supreme Court was really quite narrow, and it turned out to be a point on which even the dissent and the defendant’s counsel agreed.

Mufasa, a trial court’s or jury’s responsibility is to make factual findings such as whether an act occurred and the mental state of the defendant. Additionally, trial courts and juries apply the facts to the law to make determinations about whether someone acted “reasonably” under the circumstances. Appellate courts’ (including the Supreme Court) purpose is to answer questions of law.

Michelle, I read your message about New York law and it immediately raised a suspicion with me that this could not possibily be the law of New York. I did a little legal research on Wetlaw and located the sections 130.25, 130.30 and 130.35 of the NY Penal Code (third, second and first degree rape, respectively). I read the statutes themselves and the excerpts from cases citing these statutes. Nothing in there supports your assertion that the law of New York is that it is rape if one of the parties to a sexual encounter has been drinking. As far as I am aware, the law in every state in the country is that it is rape if you have sex with someone who is so intoxicated that they lack the mental capacity to consent at all (whether they are extremely mentally retarded, unconscious or incredibly intoxicated). What this essentially means in layman’s terms is that having sex with somene who is intoxicated to the point of not being able to say yes or no, is rape. I.e., if a man comes across a drunk woman who cannot stand or speak and is on the verge of passing out, drags her out to his car, takes her home and screws her, he is guilty of rape. If you come across a woman who has been given a date rape drug (even if you didn’t give it to her and you have no idea who did) and you have sex with her, it is rape. This law protects people who are mentally incapacitated to the point where they cannot form the requisite mental ability to consent to sex. It is a far different level of intoxication than merely having a drink or two. Indeed, it is most likely the same high level of intoxication (I have not researched this) that intoxicated defendants can use as a defense in rare cases where they use intoxication to negate specific intent. Again, what people claim the law is and what the statutes and cases actually say are usually two different things. This appears to be yet another example. If you have some news article or New York case that says differently I would be interested to see it. However, my gut instinct and the minor legal research that I did tells me that there is no way that your representation of New York can be the case. It is contrary to all the principles of our criminal legal system (and contrary to the NY Penal Code sections dealing with rape). To all the chicken littles out there, the sky is not falling. I should note (for my own protection) that my intent in starting this thread was merely to point out some important details that were omitted in the reporting of the In re John Z. case. Nothing contained in anything I have written in here is intended to be a legal opinion or legal advice. There, now if one of you goes out and rapes a woman, you cannot claim that I gave you legal advice on this thread that it was okay and then sue me for it :slight_smile:

I apologize if I was in error, that is word for word what we were told in the rape advocat certification course. I did no personal research on it, assuming that the instructor had basis/precident for the information.

Was that course run by ACE? ;p

Great thread Matthew!

I’m an attorney too (almost got 6 months of work to do) in Qu?bec and I must say journalism is as bad in the US as it is in Canada. They should really let attorneys review their comments before they hit the headlines, “average” people would much less get screwed by bad info…

Glad to see I’m not the only one in this world! :0)

-Louis-Philippe de S?ve-Bergeron

Great thread, I found a couple of other lawsuits that did not seem so outrageous as the media made them out to be when I read the facts. A couple cases in point were the McDonalds coffee case, and the Hindus and vegetarians suing because there was beef tallow in the fries. I am not saying I completely reversed my opinion on both of them, but they were not as cut and dry as the media presented them.