The court is satisfied that the court met its obligation to hear the "offer of proof". Defense counsel was twice given an opportunity to summarize the evidence and explain its relevance without restriction by the court. Indeed, after a brief recitation of the substance of the offer, counsel concluded his remarks and, on his own initiative, requested a ruling. The court's statement of its findings, though brief and general, was also adequate. The court might better have commented on the specific proffer and explained why the "interest of justice" exception was inapplicable under the circumstances of the case, but its statement adequately put defendants on notice of its reasoning and created a record for appeal. Any deficiencies in the procedure did not rise to the level of reversible error.
Defense counsel here proposed that the evidence of the victim's prior group sex with black males would show her motivation for testifying against criminal defendants but made no effort to explain how prior sexual conduct with other males would be probative of the complainant's motive to testify--a connection neither apparent nor logical on its face. In short, counsel gave no explanation of why the evidence was probative, and the Constitution does not compel a court to proceed to a fuller consideration of the evidence until the proponent demonstrates some basis for its admission. The constitutional standard is one of arbitrariness. Here, the court acted reasonably.
On this appeal, the defendants offer another theory of relevance- that the prohibited evidence was needed to counter a possible inference by the jury that no woman would voluntarily have sexual relations with three men she had met just hours before on the street. Though that theory was not expressly raised during the colloquy on the offer of proof or at any other time during trial, defendants point out that the prosecutor asked the jurors during summation to consider whether defendants' account of the night's events was "a little peculiar". Defendants claim that at that point the court should have reconsidered its earlier arrest ruling.
The defendants also contend the trial court erred in refusing to instruct the jury specifically on the mistake of fact defense and on intent as an element of first degree rape and sodomy. They assert that the jury could reasonably have found from the evidence adduced at trial that although the complainant had not consented to sexual relations, criminal defendants mistakenly believed that she had. Under those circumstances, they say, their mistaken belief negated the intent necessary for a finding of guilt on the various counts.
The Penal Law provides that a defendant is guilty of rape, first degree, or sodomy, first degree, when he or she engages in sexual intercourse or deviate sexual intercourse by forcible. The People must also establish the victim's lack of consent but lack of consent results from forcible compulsion. Though the statutes are silent on the subject, intent is implicitly an element of these crimes. The intent required is the intent to perform the prohibited act--i.e., the intent to forcibly compel another to engage in intercourse or sodomy.
The question is whether the court's charge, when viewed in its entirety, adequately conveyed to the jury that the defendants acted with the necessary culpable mens rea. The court's instructions on forcible compulsion were as follows the third and final element the People must prove that the lack of complainant's consent resulted from the use of forcible compulsion, that is, to compel by either use of physical force, or a threat, express or implied, which places a person in fear of immediate death or physical injury to herself.
The court finds that it is unnecessary to forcibly compel another to engage in sexual acts unless that person is an unwilling participant. Thus, the jury, by finding that defendants used forcible compulsion to coerce the victim to engage in sodomy and intercourse, necessarily found that defendants believed the victim did not consent to the sexual activity. The instructions given covered the defense theory and the court did not commit reversible error in declining to give additional instructions on mens rea or mistake of fact.
The court finds defendants' remaining contentions without merit.
Accordingly, in each case, the order of the Appellate Division should be affirmed.