Topic: Rape and the Withdrawal of Consent
Inga went to a bar on Hilton Head Island at
9:00 p.m. with her friend Abby to celebrate Abby’s birthday. By midnight, Inga
had consumed four beers and several shots of hard liquor. Then Abby’s boyfriend
Al arrived at the bar, accompanied by his friend Derk, whom Inga did not know.
The four agreed to go to Al’s house, where Inga consumed two more beers. Abby
and Al noticed that Inga seemed incoherent when she lay down on the living room
couch around 1:00 a.m., which is when Abby and Al retired for the night. At the
time, Derk was lying down on the floor. Inga testified that she does not
remember what happened from the time that she arrived at Al’s house until the
time when she noticed that she was lying on the floor with Derk on top of her,
engaging in sexual intercourse. Inga pushed Derk off and screamed for Abby and
Al, who took Inga to the hospital.
The police arrested Derk for rape. Derk
testified at his trial that, “I don’t know how intoxicated Inga was that night.
I only saw her drink two beers at Al’s house. Then after Abby and Al went to
bed, Inga rolled off the couch and found me on the floor. She said that she
wanted to have sex, and so we did.”
The trial judge must decide between two
competing jury instructions. Assume that the relevant definition of rape in
South Carolina is “an act of sexual penetration accomplished with any person”
when “the victim is incapable of giving consent because of any intoxicating
agent.”
The prosecutor argues that this instruction
should be given:
Consent
is not a defense to the crime of rape defined as sexual penetration where the
victim is incapable of giving consent because of intoxication. In determining
whether the victim was incapable of giving consent because of intoxication, you
must consider all the circumstances in determining whether the victim’s
intoxication rendered her unable to exercise reasonable judgment.
The defense counsel argues that this
instruction should be given:
Consent
is not a defense to the crime of rape defined as sexual penetration where the
victim is incapable of giving consent because of intoxication, if the victim
was incapable of giving con- sent because intoxication rendered her unable to
exercise reasonable judgment, and if the Defendant knew that the victim was
unable to exercise reasonable judgment because of her intoxication.
What arguments will be made by each side to
support these competing instructions? How should the court rule, in light of
all the rape reform policies that are illustrated in the cases in this chapter?
See State v. Jones, 804 N.W. 2d 409 (S.D. 2011).
Your memo must meet the following requirements:
· The length of
assignment 2,500 words
· The assignment
must be written according to current Bluebook writing
· The assignment
must contain a minimum of four sources.
Note: Your assignment will be checked for originality
via the Turnitin plagiarism tool.
