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Domestic Violence
St. Johns University School of Law
Fisher, Marjory D.


Domestic Violence

Fall 2011

A. Sexual Assault

I. Terminology under the Penal Code

a. NYPL 130.00(3): Sexual Contact: any touching of the sexual or to the intimate parts of a person not married to the actor for the purpose of gratifying sexual desire of either party. It includes touching of the actor by the victim, as well as the touching of the victim by the actor, whether directly or through clothing

b. NYPL 130.05(3): A person is deemed incapable of consent when he or she is:

i. Less than 17, or

ii.Mentally disabled, or

iii. Mentally incapacitated, or

iv. Physically Helpless

II. Forcible Compulsion

a. Overview: most common basis for rape charge in US; definition varies by state; ONE WAY TO PROVE LACK OF CONSENT

b. NYPL 130.00(8): Forcible compulsion: means to compel by either:

i. use of physical force; OR

ii.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 her she or another person will immediately be kidnapped

c. NYPL 130.35(1): Rape in the 1st Degree: sex w/ another person by forcible compulsion

d. NYPL 130.50(1): Criminal Sexual Act in the 1st Degree:

i. Guilty of criminal sexual act in the 1st degree when oral/anal w/ another person by forcible compulsion

e. NYPL 130.65(1): Sexual Abuse in the 1st Degree:

i. A person is guilty of sexual abuse in the 1st degree when he or she subjects another person to sexual contact by forcible compulsion

f. NYPL 130.66(a): Aggravated Sexual Abuse in the 3rd Degree:

i. Inserting a foreign object by forcible compulsion

g. NYPL 130.67(a): Aggravated Sexual Abuse in the 2nd Degree:

i. Inserting a finger by forcible compulsion causing physical injury

h. NYPL 130.66(a): Aggravated Sexual Abuse in the 1st Degree:

i. Inserting a foreign object by forcible compulsion causing physical injury

i. Whose State of Mind is Relevant?

i. Coleman: since there was no express threat or actual physical force, can this be forcible compulsion? YES, bc it’s the victim’s state of mind that is relevant

1. This is unusual in a criminal case, the mens rea usually looks to the perps state of mind

2. SO, its not what the D would have done, but rather, what the V observing his conduct feared he might’ve done if she didn’t comply (what does she testify to)

3. Factors indicating that V’s fear was believable: LOOK TO SITUATION AS A WHOLE; stated fear for her life; imprisonment in elevator; treatment of her son; naked

ii.Thompson: even though separated by bars of jail cell (so threats couldn’t be carried out immediately) still rose to level of forcible compulsion bc V’s state of mind the is the proper focus

1. Factors: size, strength, presence of this man in JV hall, influence w guards and other prisoners, etc

2. Still needs to be realistic/reasonable/some objective criteria – if evidence as a whole allows jury to reasonably infer that fear was reasonable, then it will be upheld BUT NOT that V had a reasonable cause to believe the threatened harm would be carried out

iii. Big Question: What was the victim’s state of mind at the time and was his/her fear reasonable under the circumstances?

j. No Corroboration Requirement Under NY Law

i. No longer need a corroborating witness but it helps bc juries are uncomfortable convicting based on V’s testimony alone

ii.Try to weed these people out during voir dire

iii. Original purpose – prevent women from making false accusations that would ruin a man’s life

III. No Requirement of Resistance

a. Language removed from the statute in 1982 – part of “don’t blame the victim”

b. Fransua: EARNEST RESISTANCE is no longer necessary to prove forcible compulsion to prove rape

i. D grabbed her hair, maintaining a firm grip, while forcing her to do acts is sufficient to support a conviction under the definition of forcible compulsion

c. Thompson: no longer a req of earnest resistance (prison case)

IV. Previous Attacks Can be Introduced to Show Victim’s Fear Relevant to Force

a. To prove forcible compulsion as an element – showing prior history of assaults goes to show V’s state of mind and how he was afraid/reasonable to believe that threats to him would be carried out

b. How do you get it in? Sandoval/pre trial motion – bc its not exactly the same thing like an M.O. but close enough

c. Tas: (prison) V witnessed a previous assault minutes before against another prisoner and bc D raised the ISSUE OF CONSENT the people get to bring in evidence to show V’s state of mind at the time of the attack to show fear and lack of consent

d. Velez: evidence of prior DV assaults can be admitted if they can be logically linked to some SPECIFIC MATERIAL ISSUE in the case

i. Here, the issue raised was forcible compulsion/lack of CONSENT

ii.Don’t need to be officially CHARGED

V. Discrepancies in Age and Size Between Victim and Defendant Can Constitute Force

a. Concepcion: religious leader sexually assaults 14 yo during “ceremony”; differences in age, weight, size, strength, authority btwn V and D were sufficient to support finding of FC – violation of trust

i. This is for the jury to find and fact finder – what was the whole situation, what were their relative positions, how did the act occur (here, she was blindfolded, in the dark, etc)

b. Yeaden: no actual physical force (just thrown onto bed); violent conduct by D not proven, so how to prove force? Age, size, dominance, etc but the point is, proof of FC is not deficient for lack of actual, violent, conduct

VI. No Marital Exemption

a. Liberta: (NY COA) the ME violates the EP clause of the 14th bc its under-inclusive – M and unM’d men treated differently w/o a rational basis for doing so (based on archaic notions and really awful reasons)

VII. Gender Issues in Charging

a. Liberta: saying only men could be convicted of forcible rape (bc men get aroused so not considered raped) is unconsti; argued state interests are rejected and cant show that a gender neutral law wouldn’t work (even if that one is only marginally better, then that’s what has to be on the books)

VIII. To Build a Case – Showing FC

a. Proof of Force in Actual Rape Case

i. Age and Weight discrepancies

ii.Sounds of struggle

iii. Medical evidence

iv. Torn clothes (anything with underwear)

v.Weapons (rare!)

vi. Prompt outcry

vii. Appearance

viii. Rape Trauma Syndrome

b. Notes:

i. You don’t need corroborating evidence but it helps

ii.Jurors are skeptical and the above things help them to convict

iii. Crime scene is her body – bite marks, skin under nails, DNA

IX. Statutory Rape

a. Policy concerns – to protect young people from being taken advantage of

b. Strict liability – no defense by saying, she looked older, told me she was older, was in a 21 and older bar, etc otherwise it would be claimed by everyone, all the time

i. Cops use this to their advantage – sympathize that she looks older and the guy might confess

ii.In reality – Jury Nullification – will acquit even though he’s guilty of breaking the law and should be slam dunk

iii. Impo

ing witness can’t prove MI so the following law was created

iv. NYPL 130.90: Facilitating a Sex Offense w/ a Controlled Substance: a person is guilty when he:

1. Knowingly and unlawfully possesses a controlled substance and administers such substance to another person without consent and with intent to commit sex offense AND

2. Commits/attempts the act

3. How to prove? Go to the police right away bc the evidence wont last long but typically too hard to prove, maybe 10 cases in NY

b. Mentally Disabled:

i. NYPLA 130.00(5): “Mentally disabled” means that a person suffers from a mental disease or defect which renders him or her incapable of appraising the nature of his or her conduct


1. After statutory rape and force, this is the most common

2. Problem here = MD person easily persuaded and most of the time there was consent

3. Affirmative defense easier to prove here

4. V must fit into this very specific legal definition; what does “incapable of appraising the nature of his or her conduct” even mean? Need to have someone evaluate the V and get the right expert to do this

a. Questions like: 1) do you understand what sex is and its effects? 2) do you know where babies come from? 3) do you know that you can say no?

5. Need corroborating evidence as well

iii. Easley: (NY COA) V was clearly retarded, esp on witness stand, D’s claim = objected to “moral quality”

1. Court held that “moral quality” is part of understanding the nature of sex and consenting to it (social consequences, significance, etc) (part of a bigger picture/more factors then just this)

iv. Cratsley: (NY COA) D’s claim = V’s counselor shouldn’t have been allowed to testify re: her mental retardation

1. Court held that expert testimony is NOT needed bc it is w/in the comprehension of a layman

2. Testimony by those who have a lot of contact w/ the V is ok (affirmed from Easley)

c. NYPL re: MI and MD:

i. Affirmative defense to BOTH: did not know that the V is in this condition at the time of the incident (NYPL 130.10(1))

ii.NYPL 130.30(2): Rape in the 2nd Degree: when V has sex w another person who is incapable of consent by reason of being mentally disabled or incapacitated

iii. NYPL 130.45(2): Criminal Sexual Act in the 2nd Degree: when D has oral/anal w another person who is incapable of consent by reason of being mentally disabled or mentally incapacitated

iv. NYPL 130.66(2): Aggravated Sexual Abuse in the 3rd Degree: inserting a foreign object causing physical injury to a person incapable of consent bc of MI or MD

v.NYPL 130.16: Sex Offenses; Corroboration:

1. D cannot be found guilty for a sexual charge based on either of these w/o corroboration (NYPL 130.16)

a. Need evidence to establish that an attempt was made to engage V is sex/oral/anal at the time AND connects D w/ the commission of the offense or attempted offense