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Showing posts from April, 2007

The Massachusetts Supreme Judicial Court considers question on the impact of intoxication in a rape case

Last month, I worked with faculty and classmates to submit an amicus brief to the Massachusetts SJC on a rape case that will be argued before the Court. The core of the case came down to prosecution's burden in establishing that the victim did not consent to the act and hence, it was rape. The standard in Massachusetts is that in situations where the victim is incapacitated (drunk, drugged, unconscious), the judge will give the jury an instruction that the jury must find that she was either utterly senseless or wholly insensible to warrant a finding that she was incapable of voluntary consent. We posited that this was a ridiculously high standard and that juries should only be given a general instruction that says you may consider whether alcohol affected the victim's ability to consent. This case is a big deal because it's placing a really high burden on the prosecution and focusing on the victim's actions. This is not the case in murder cases where the defendant can …