Worst Modern Court Opinion in Criminal Rape Case?
For the coming semester, I have decided to try teaching without a casebook. Instead, I have been putting together materials with an emphasis on more recent cases embodying prominent issues in substantive criminal law. Regarding rape and sexual assault, in particular, I feel that the cases used in the major casebooks are too dated and less relevant to students today. So, in my search for new cases, I stumbled across an appellate court opinion out of Louisiana in 2005, State v. Wilbert Touchet, Jr., 897 So. 2d 900 (La. Ct. App. 2005). I think this is has to be the worst reasoned opinion regarding rape I have seen by an American court in the last thirty years. The basic facts, as described by the appellate court were: “The State of Louisiana alleges that the Defendant struck the victim with his fists, forced her to remove her clothing at knife point, and had sexual intercourse with the victim against her will.” Yet, despite a guilty verdict at a bench trial, the appellate court reversed the aggravated rape conviction and found insufficient evidence for the lesser included offense of forcible rape (The court’s reasoning after the jump).
From the court:
The trial court found the Defendant guilty of aggravated rape in violation of La.R.S. 14:42(A)(3), which states, in pertinent part:
A. Aggravated rape is a rape committed upon a person sixty-five years of age or older or where the anal, oral, or vaginal sexual intercourse is deemed to be with-out lawful consent of the victim because it is committed under any one or more of the following circumstances:
. . . .
(3) When the victim is prevented from resisting the act because the offender is armed with a dangerous weapon.
The victim testified that she met the Defendant around Mardi Gras 2002. The two subsequently spent several nights together. At some point, the Defendant left to go to work offshore. While he was offshore, the victim rented a house for the two to live in together when he returned. All of this happened between Mardi Gras and the first week of March 2002. When the Defendant returned from working offshore, he moved in with the victim. The two slept together in a small bedroom in the rented house.
The victim stated that about two weeks after they had moved in together, she and the Defendant had gone on an outing and when they returned, the Defendant told the victim that she had been acting like a whore. Upon arriving at their home, they entered the home, and the Defendant locked the front door. The victim proceeded to go to the bathroom, which was through the bedroom. The Defendant met the victim and told her, “if you want to act like a whore, I’m going to treat you like a whore,” and told the victim to remove her clothing. The victim testified that she told the Defendant no at first. At that point, the Defendant pulled out a pocket knife. Then the victim testified that she did not remember the knife being very close to her, but “he came to [her] with it.” The victim stated that she believed that he was capable of using the knife and that she was scared that if she tried to get away, the Defendant would catch up to her.
After refusing once or twice, the victim removed her own clothing at the Defendant’s prompting. She stated she probably would have removed her clothing even if he had not had the knife because she was the “underdog.” After she removed her clothing, the Defendant “set the knife down” and “proceeded to come up on [her].” At that point the two had sexual intercourse.
The victim testified that she did not want to have sex. The victim stated that she resisted the Defendant verbally, but did not get up and leave the room because she was scared. On cross-examination, the victim stated that other than saying no, she did not resist the Defendant in any way.
The Defendant testified that he never held a knife to the victim’s throat and raped her. The Defendant further testified that the victim never indicated to him that she did not want to have sex with him….
In the case at bar, … the victim testified that the Defendant did not get near her with the knife…. [T]he victim did not testify that the knife or any other weapon was accessible to the Defendant during the commission of the sexual act. Accordingly, we find that the evidence viewed in the light most favorable to the prosecution is not sufficient to uphold a conviction of aggravated rape.
We will, therefore, examine whether any responsive verdict was proven. Forcible rape is a proper responsive verdict for aggravated rape. La.Code Crim.P. art. 814(A)(8). We will review the evidence in order to determine if the evidence is sufficient for a conviction of forcible rape.
The definition of forcible rape is set forth in La.R.S. 14:42.1 as follows:
A. Forcible rape is rape committed when the anal, oral, or vaginal sexual intercourse is deemed to be without the lawful consent of the victim because it is committed under any one or more of the following circumstances:
(1) When the victim is prevented from resisting the act by force or threats of physical violence under circumstances where the victim reasonably believes that such resistance would not prevent the rape.
In this case, the Defendant held a knife toward the victim and told her to remove her clothing. When the victim complied, the Defendant put the knife down, came over to her, and the two engaged in sexual intercourse. The victim testified that the only resistance she offered was saying no when the Defendant told her to remove her clothing….
While the victim in this case actually saw the weapon the Defendant possessed, the victim did not testify that the Defendant actually verbally threatened her with the weapon.
The testimony of the victim, when viewed in the light most favorable to the prosecution left reasonable doubt as to whether the victim was “prevented from resisting the act by force or threats of physical violence.” Therefore, the evidence does not meet the elements necessary for convicting the Defendant of forcible rape.
On its own terms, the court’s opinion seems like a time capsule from 1905 and not 2005. Yet, the court also committed a further significant error by selectively excerpting the Aggravated Rape statute. Whereas the court only included subsection (3),subsections (1) and (2) also provided for aggravated rape when: ” (1) When the victim resists the act to the utmost, but whose resistance is overcome by force … [or] (2) When the victim is prevented from resisting the act by threats of great and immediate bodily harm, accompanied by apparent power of execution.” The opinion is just a disaster all over, particularly with a standard of deference to the trial verdict. Perhaps, then, we shouldn’t be surprised when Louisiana police don’t investigate rape cases and, in the case of one SVU officer, don’t think “simple rape” should be a crime.