Criminal Code
Read the following fact pattern. Do you believe this is “forcible compulsion”?
The events in question took place on August 6, 1981, while defendant and the victim were both inmates at the Albany County jail. The victim, a 16–year–old male, had been in the jail slightly less than three weeks, awaiting disposition of charges that he had sold hashish. He occupied a cell in the first east tier of the jail, a portion of the jail reserved for unsentenced juveniles. The juvenile tier consists of 25 cells which open to a common walkway known as the bullpen. The cells are routinely unlocked during most of the day, so that the bullpen area is accessible to all inmates on the tier. Beyond the bullpen, and separated from it by a set of bars, is a parallel walkway referred to in the testimony as the catwalk. The bullpen and the catwalk each end in a locked gate, tended by a correction officer, which separate the tier from the rest of the jail. Jail policy prohibits adult inmates from entering the juvenile tier.
The defendant, a 35–year-old male, was housed in one of the adult tiers. He had spoken to the victim on three occasions prior to the August 6 incident, twice in the mess hall, where they engaged in conversation about their backgrounds, and once in or near the weight-lifting room, where defendant commented on the victim’s slight stature and demonstrated his own strength by lifting the victim over his head. The victim testified that he was about five feet, six inches tall and weighed approximately 120 pounds. He estimated that defendant was six-feet tall and weighed about 180 pounds.
Sometime between 11:00 a.m. and noon on August 6, defendant approached the correction officer on duty at the gate to the juvenile tier and asked to be permitted into the tier to speak to an inmate. Despite the policy prohibiting such access, defendant was admitted to the catwalk area. The guard then returned to his desk, from which point he was unable to view the tier.
Defendant called to the victim through the bars separating the catwalk from the rest of the tier. The victim exited his cell and approached the bars. Defendant then stated that he wanted the victim to perform an act of oral sex. When the victim refused, defendant issued the threats which are the focus of this appeal. According to the victim: He started to threaten me and say he could have people kick my ass if I didn’t do it.”
“He told me that anything could happen to me if I walked off the tier. It could happen anywhere, he said. I could get beat up anywhere, it could even be somebody on the tier if he wanted to.
“He said that he could put the word out on me if he wanted to and he could have anybody kick my ass.”
“He said it was a matter of trusting him and if I did it with him I wouldn’t have to worry about it. I wouldn’t have to be worried about being bothered again and if I didn’t do it, that, you know, the same thing would happen.”
“He would make sure I would have a rough time while I was there.”
“He just meant that, you know, he could have somebody kick my ass if he wanted to.”
Another inmate on the tier testified that he viewed the incident and heard defendant state, “If you don’t give me no piece of ass, I’ll kick your ass.”
Following these threats, the victim complied with defendant’s requests that he submit to various acts of sodomy. Defendant renewed his threats between episodes. During the entire incident the two remained on opposite sides of the bars of the catwalk.
That afternoon the victim asked to be placed in protective custody, and the following day he reported the incident to officials.
8. “Forcible compulsion” means to compel by either:
a. use of physical force; or
b. a threat, express or implied, which places a person in fear of immediate death or physical injury to himself, herself or another person, or in fear that he, she or another person will immediately be kidnapped.
2.1. First Degree Rape
The first subdivision of First Degree Rape is:
A) Forcible Compulsion Rape. This is:
1) The use of force, or
2) A threat which places a person in fear of immediate death or immediate physical injury to himself, herself or another person, or in fear that he, she or another person will be immediately kidnapped. The threat can be express or implied, but it has to be the threat of the immediate use of force.
A victim is not required to resist physically or verbally.
Subdivision 2 is sexual intercourse with someone who is physically helpless. The definition of "physically helpless" is included in the definitions.
Subdivisions 3 and 4 are statutory offenses (meaning that mens rea does not need to be proven). Sexual intercourse with a victim under the age of 11 is first degree rape and sexual intercourse by someone who is 18 or older with a victim under 13 is first degree rape. There is no defense to statutory rape.
Second Degree Rape
A person is guilty of rape in the second degree when:
1. being eighteen years old or more, he or she engages in sexual intercourse with another person less than fifteen years old; or
2. he or she engages in sexual intercourse with another person who is incapable of consent by reason of being mentally disabled or mentally incapacitated.
It shall be an affirmative defense to the crime of rape in the second degree as defined in subdivision one of this section that the defendant was less than four years older than the victim at the time of the act.
Technically this is a statutory crime. Sex with a mentally disabled individual is rape so long as the disabled individual lacked the ability to consent due to the disability. It becomes tricky. It’s also difficult if the defendant didn’t know the victim was mentally disabled.
Notice the 4 year rule in the age component. The court will literally pull out birth certificates to see if the people are 4 years apart in age.
Third Degree Rape
Third Degree Rape is statutory rape when a person who is 21 or older has sexual intercourse with a person who is 16 or younger. Understand that as the victim gets younger, this can become second degree or first degree rape. Don’t forget those sections’ statutory components.
There is no defense to statutory rape so long as the sexual act was committed. Mens Rea does not matter. A person could have a fake ID and be in a bar pretending to be older. If sexual intercourse occurs and one person is 21 or older and the other is 16 or younger, it is rape. It used to be that the law was a male 21 or older and a female under 17, but that has been changed to remove the gender classification.
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