How Well Do You Know Yourself, Much Less Others?

Rape cases are often the most difficult cases to handle. Many attorneys shy away from them, not wanting to be involved in cases that involve the kinds of facts that arise in these cases. Frequently the issues raised strike close to home for many attorneys, jurists, and jurors. Almost everyone knows someone who has been raped or sexually assaulted. Many people know someone, including themselves, who may have ended up doing things while highly intoxicated that they can’t completely recall later. These factual issues, along with a fascinating legal issue, were the subject matter of a recently released Eighth Circuit case. On April 7, 2014, the Court released United States v. Fast Horse. The case involved a common scenario with an uncommon legal twist. The complaining witness was at a party. She consumed too much alcohol, found an empty bedroom, and laid down. She awoke to find Mr. Fast Horse on top of her having sex. At trial, Fast Horse argued a simple but interesting point. He asked whether the government was required to prove that he knew that the complaining witness was incapable of consenting (due to her intoxication)? The trial court gave instructions to the jury. The instructions did not place this burden on the government. Instead, the court told the jury that the government only had to prove that Fast Horse knew what he was doing (the act of having sex), and that the complaining witness was too intoxicated to consent. But, the court refused to instruct the jury that it had to find that Fast Horse knew that the complaining witness was too drunk to consent. The Court of Appeals reversed Fast Horse’s conviction. It said, over a strong dissent by Judge Colloton, that the government must prove knowledge of the inability to consent as an element of the offense. From Colloton’s dissent it is apparent that this issue is hotly debated among the judges of the Court of Appeals. The decision reflects a certain amount of judicial courage. It is never popular to align oneself with a defendant, especially one charged with a sex crime. There was almost no debate as to the facts, none of which reflected positively on Fast Horse. Yet the Court wasn’t willing to lessen the government’s burden of proof on a crucial, though often neglected, matter. The case reminded me of an appeal I did several years ago in State v. Roach. In that case, the defendant was charged with raping his long time girlfriend. They had an unusual relationship which was characterized by mutually consensual “rough” sex. For instance, the defendant had movies of his girlfriend holding a knife to her own throat while performing sex acts on him, and there was testimony as to a pattern of aggressive sexual activity in the bathroom of their home. On the date in question, after a night of arguing by text, the defendant came to his girlfriend’s apartment, took her into the bathroom, and had sex with her. His argument at trial was that he did not know she had not consented because, based on their history of rough “make up” sex in the bathroom, he thought she was consenting even though she was telling him to stop. At trial, his attorney, a zealous public defender named Jamy Patterson, asked the judge to instruct the jury that the State had to prove that the defendant knew that the complaining witness was not consenting to sex. The judge refused and the jury convicted the defendant. I tried to revive the argument on appeal, but was also unsuccessful. Even though Ms. Patterson’s arguments did not carry the day, that doesn’t mean they weren’t good arguments. It was a fantastic defense in an otherwise indefensible case. And, it doesn’t take a lot of work to analogize between the recent holding in Fast Horse to the facts in Roach. I think, now that Fast Horse has been issued, that the Roach case may have been viewed differently today than it was a few years ago. Fast Horse also reminded me of a discussion I had with a colleague about these “inability to consent” rape cases. The issue was intoxication. In many of these cases, both parties are extremely intoxicated. The issue is not whether sex occurred, but whether one party knew that the other party was so drunk they could not knowingly consent to the act. The question posed to me by my colleague was, “Why does the male always get charged and never the female?” If all we really know is that both parties are drunk and that sex occurred, is it fair to just assume that the male was the aggressor and that he knew what he was doing, notwithstanding his intoxication, and also assume that the female was the victim and did not know what she was doing by virtue of her intoxication? A male can be completely blitzed and still complete the act, but that does not mean he knowingly consented any more than the female knowingly consented. These are tough questions. In many, many cases, males take advantage of intoxicated women and use them for sexual purposes. That is both morally and legally wrong and should be punished severely. But, are we serving any societal purpose by assuming that women are always the victim if sex occurs between two highly intoxicated people? The Fast Horse decision partially addresses that inequity by making the government prove, at minimum, that the defendant knew that the suspect was incapable of consenting before allowing a conviction to stand.