What is "rape"?

The Ohio Steubenville rape case has captured the nation's, and many parts of the world's, attention for the past few weeks as the verdict for the two main defendants, a seventeen year old and sixteen year old, came out on March 17. The basic facts goes as follows, though probably most people know: a sixteen year old girl went to an all-night party, got drunk, then the two aforementioned teenage boys had sex with her, took pictures and a video of the girl, posted them on YouTube and sent text message pictures. The girl charged the boys, football heroes locally, with rape. The defendants defended that she consented, though she had been drunk while the teenagers had sex with the girl.

The legal issues surrounding consent and the level of intoxication is not something that I am particularly knowledgeable, but the issue of consent, rape, gender lines, and young people surrounding parties is something I have come across, so my comments will be limited to those topics. One of the primary legal defenses was that the girl had consented, or at the very least did not opt out of having sex. A common argument, especially between parties who know each other is that, given the context of sexual relations, innuendos, nonverbal signals, women should actively opt out if they do not want to have sex. Otherwise, the baseline is that consent is given if she doesn't give an affirmative, explicit signal (some would go as far as verbal) that she does not want to have sex. The alternative and often argued on behalf of women is that women should not have to opt out of having someone penetrate her body. Men should have to ask, otherwise the answer is no. These arguments often turn on the power imbalances between men and women. Unfortunately, there is no universal system of "opt in" or "opt out" and states vary on what is called "rape."

Another interesting and often central aspect of rape, as was with case, was the credibility of the arguments. Because rape usually occurs without any witnesses, the evidence and strength of the argument often comes down to a "he said" versus "she said" argument a la Rusk v. State. Unfortunately, in the adversarial system, this comes down to demonizing the other side while attempting to make your side look like the victim. The woman will be framed as a seductress, a liar, or a money grubber. The man will be framed as a liar, who doesn't respect women and is a slave to sexual urges. No one ends up looking good.

The incredible thing is that even if the woman is demeaned or clearly feels violated after the fact or feels like she didn't want sex beforehand, she can still be framed as someone who "wanted it" or "deserves it." Now, I don't mean to say that every time a woman regrets having sex with a man, it should be rape. Rather, aside from purely legal analysis, society's views about rape still tend to make the woman the criminal. Even the media commentary surrounding this case was extremely sympathetic to the defendants, describing how a witness claimed that the victim had been "flirting" with one of the defendants at the party or emphasizing repeatedly how a verdict would "ruin" the futures of these teenagers. There was definitely not a similar kind of sympathy towards the victim and how her life has been negatively impacted her life.

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The Trayvon Martin Case

There are many hot cases that are in the news right now, with the health care law being one of the most discussed in the media. I wish I knew anything about healthcare law, but knowing how complex it is and my extremely limited knowledge of anything related to the healthcare industry, I'll probably say very little about it. However, there are some controversial cases right now that (yay!) I am able to have some adequate discussion about; the Trayvon Martin case being one of them.

It's kind of amazing how quickly this case has risen from the little town of Florida. The racial overtones as well as the social media (people say) is definitely one of those. Bring back nostalgia of the 1960s and prior when frequently young black boys were killed out of pure racism. While this case is much more shaded and nuanced, especially given the "Stand Your Ground" law that allows for deadly self-defense in Florida.

George Zimmerman, Martin's killer, has not been arrested by the police, because according to the police, there is no evidence that conflicts with Zimmerman's story. Zimmerman alleges self-defense, because an altercation occurred between him and Martin. Zimmerman had been following Martin, because to Zimmerman, Martin looked suspicious. As the head of the neighborhood watch team, Zimmerman had called 911 numerous times, asking them to check out Martin who has standing around the neighborhood. After 911 didn't do anything, Zimmerman ended up in a struggle with Martin.

According to Katish et. al. in Criminal Law and Processes, the "stand your ground" type laws originated from the "true man" doctrine that men should not retreat from their homes as a moral and practical matter. Professor Suk claims that the home was a private area that was not protected by the king or government. Further, a true man protected his home. But now, as Emily Bazelon in Slate discusses, these laws have a racial tenor to them and are the subject of a young, black teenager's death.

Florida is one of these states that has these no-retreat laws. Title XLVI, Section 776.013(3) states that "A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has a right to stand his or her ground and meet force to force, including deadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another..." Interestingly, Florida has taken a very broad approach to the no-retreat law, which is why perhaps the Trayvon Martin case has become such a controversial issue because Zimmerman has not been arrested. Because Section 776 does not specify a specific location, like a home or a workplace, but rather vaguely says "where he or she has a right to be," conceivably anyone could be anywhere, like a public place, and have no duty to retreat. This significantly expands the no-retreat doctrine from its origins of the home, where you would not expect significant protection from the government or a place to retreat.

Furthermore, this statute and case hinges on whether or not the person "reasonably believes it is necessary to do so to prevent death..." It clearly appears that Zimmerman reasonably believed he needed to act as evident from the multiple calls to 911 where he said that Martin looked suspicious. This brings us to another typical problem of understanding what "reasonably believes" means and how we should come to determine what reasonable should be considered in this case. On its face, using an objective test, it is unreasonable for Zimmerman to think that he should take deadly action or even any violent action towards Martin for just standing there in the streets based on the color of his skin. However, once we take a more subjective approach, as seen in People v. Goetz, the standard becomes more forgiving of Zimmerman. What if Zimmerman had a history of being mugged, robbed, or harmed by young black boys? Should Zimmerman be judged on that basis? Or what about the fact that Zimmerman had a responsibility as the neighborhood watch to be more sensitive to people hanging around the streets? The complexities of determining such tests of understanding what "reasonable behavior" means remains a controversial and tenuous topic, especially when race is involved. See People v. White.

Another issue is factual. There will probably be an extensive investigation, especially with the DOJ involved, but this case could hinge on what exactly Zimmerman did based on his honest beliefs. All we know right now is that a struggle occurred and Martin is dead. If it is found that Zimmerman only questioned Martin, and Martin was the aggressor, then Zimmerman's self-defense claim is valid. However, if Zimmerman was the aggressor, which could be likely given that he followed Martin and seemed very determined to get Martin off the streets, does he really have a reasonable self-defense claim under the statute? Under the plain meaning of "reasonable" if Zimmerman really thought that Martin was going to be a threat to the community, it does seem to be able to fall into the text of the statute. But when you think about the overall purpose, was this statute really meant to cover young boys visiting his girlfriend?

Nevertheless, it should be interesting to see how this case evolves, especially because this has quickly become a politically hot issue. Whenever politics get involved, it does seem that the law becomes much more malleable towards public opinion.

First Blog

Yes, this is my attempt at being pretentious and brandishing my legal knowledge, or lack thereof. I hope to use this as a personal rambling of different cases, doctrine, legal issues that I learn about and come across in my growing love for new and interesting cases, especially coming out of the SCOTUS.

For those who don't know, in pari materia is a statutory interpretive tool that when a statute or clause is ambiguous, it is assumed to be about the same subject matter of the things around it. So, anything posted here will likely be something law related, probably cases or legal trends that are pertinent today. Enjoy!