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Issue of Consent Discussed in Rape Charge

The Facts:

On 21 May 2008, as amended on 28 May 2008, defendant was convicted by the Supreme Court, Bronx County of rape in the third degree, a criminal law violation. He was sentenced as a second felony offender to a term of 2 to 4 years.

The Ruling:

Defendant, who was indicted for numerous crimes including forcible rape, was only convicted under a count of the indictment charging third-degree rape pursuant to Penal Law. As part of the Sexual Assault Reform Act, the Legislature established a theory of rape in which the victim’s lack of consent is by reason of some factor other than incapacity to consent. A New York Criminal Lawyer said lack of consent for purposes of this crime occurs where the victim clearly expressed that he or she did not consent to engage in such act, and a reasonable person in the actor’s situation would have understood such person’s words and acts as an expression of lack of consent to such act under all the circumstances.

Here, the verdict was based on legally sufficient evidence and was not against the weight of the evidence. The jury’s mixed verdict does not warrant a different conclusion. The victim testified that she repeatedly told defendant that she wanted to leave and that she was crying the whole time. Thus, her words and actions clearly expressed an unwillingness to engage in the sexual act in such a way that a neutral observer would have understood that she was not consenting, particularly when viewed in light of defendant’s own actions throughout this encounter, which began when defendant forced her to his apartment. The victim’s requests to leave were clear expressions of her unwillingness to engage in sexual activity.

Under the law, third-degree rape also has several unusual procedural aspects. The statute specifically provides that this type of third-degree rape is not a lesser included offense of any other crime, including first-degree rape. A New York Drug Possession Lawyer said however, such offense may be submitted as a lesser included offense of the applicable first degree offense when there is a reasonable view of the evidence which would support a finding that the defendant committed such lesser offense but did not commit the greater offense and both parties consent to its submission.

Although defendant opposed submission of the third-degree rape count on which he was convicted at trial, (as well as other third-degree counts of which he was acquitted), he did so only on the ground that the evidence did not support the third-degree counts. Hence, he did not preserve his present claim that even though it was a separate, preexisting count of the indictment, the court was still obligated to obtain his consent before submitting the third-degree count of which he was convicted, and the court declines to review this claim in the interest of justice. As an alternative holding, the court also rejects it on the merits. The court did not submit the third-degree count as a lesser included offense of the first-degree count, but as a separate count of the indictment, a situation not addressed by law. Furthermore, New York Drug Possession Lawyer said this separate count was not a lesser included offense of the first-degree rape count, but was instead a non-inclusory concurrent count. As noted, the statute expressly declares that this type of third-degree rape is not a lesser included offense of forcible rape. Moreover, even without this legislative declaration, the court notes that although forcible compulsion generally implies that the victim did not consent, a person could commit forcible first-degree rape without necessarily committing the particular type of third-degree rape criminalized under Penal Law. For example, a person might demand sexual intercourse while making a death threat, causing the terrified victim to submit immediately, without ever doing or saying anything to express lack of consent, as required by Penal Law.

Prior to summations, although the court indicated that it would not allow defense counsel to argue that the victim had consented, counsel ultimately was able to make this point by repeatedly telling the jury that the victim was not telling the whole story, that the defendant’s actions were inconsistent with those of a rapist, and that the victim was not forced to do anything. Hence, a New York Sex Crimes Lawyer said any error in the court’s pre-summation ruling was harmless. Since defendant did not argue that he was constitutionally entitled to make the proposed argument, he did not preserve his constitutional claims, and the court declines to review his claims in the interest of justice. Alternatively, the court also rejects those claims on the merits, and finds the alleged error to be harmless in any event.

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