Discussion List for campus-based and allied personnel working to end gender-based violence on campus.

www.masslawyersweekly.com/signup/opinion.cfm?page=ma/opin/sup/1002708.htm



www.masslawyersweekly.com/signup/opinion.cfm?page=ma/opin/sup/1002808.htm



These cases articulate a nice standard re intoxicated victims and the
legal standard by which juries can find perps guilty? when the victim
is under the influence.? The cases are long and not especially clear -- so to 
get a good sense of exactly what the court said, read the concurring opinions 
of Justice Cowin and Spina in the Blache case first. These justices bemoan 
the fact that many more men will be accused of rape by women who were drunk 
AND consenting.? I read these concerns as speculative, based in mythology and 
frankly - a bit juvenile -- but you decide.



The defense argued in these cases that the standard should be:? a jury can 
only
consider a victim's intoxication on the issue of consent if she is so
intoxicated she is "utterly senseless" or "wholly insensible".? In other 
words - on the verge of unconsciousness.



I wrote an amicus brief and with help from Susan Lewis at the National
Sexual Violence Resource Center, was able to include compelling data
showing the causal connection/correlation between intoxicants and
sexual violence.



My argument to the court was that they adopt a standard allowing the
jury to consider generally whether the victim was unable to consent do to 
intoxication - and the court agreed - 



thus - the new rule is: a jury must consider whether a victim was intoxicated 
to the point where she was unable to consent.



This is obviously a much better standard than only allowing a jury to
consider intoxication if the victim was "wholly insensible" or "utterly
senseless".? The new rule also effectively sends a "buyer beware"
message to offenders -- that THEY bear the risk that a victim may be
too intoxicated to consent -- and that they face a much higher risk now
of being charged with rape if they have intercourse with a drunk
victim.? In short, the victim's state of intoxication will be seen as a
vulnerability, not a liability - even if she isn't extremely drunk.



The other good news is that a jury must now also consider whether a
suspect "reasonably believed" a victim was not too intoxicated to
consent -- and on this point - the law will now allow people who saw
the victim to give their opinions and testimony regarding her condition
around the time of the incident.? Thus, if a suspect claims he THOUGHT
she was sober enough to consent, other witnesses can counter that claim
and prove his mistake was unreasonable by testifying that she was
slurring her speech, unsteady on her feet - etc -- 



Because the defendant's belief re intoxication must be "reasonable" -- all 
contrary opinions will be admissible at trial.



this is obviously a very important case for campuses to learn about and
should become part of any training on sexual violence, at least in
Massachusetts - but elsewhere as well given the dearth of appellate law
on this important issue.



wendy murphy
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