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Reunion Rape, 4

The election for Berkshire District Attorney has generated lots of discussion (here, here, here and here) at EphBlog. Especially interesting have been the comments (e.g., here) from Interloper, who really ought to join us as an author. Andrea Harrington won the primary but incumbent Paul Caccaviello is running ran a (hopeless? hopeless!) write-in campaign. What matters to us, however, are these news stories about an (alleged) rape at reunion in 2016. As one of the four highest profile sexual assaults cases at Williams in the last 20 years — the other three are Gensheimer/Foster, Brackenridge and Safety Dance — this merits a week’s worth of discussion. Day 4.

Maybe John Pucci is neither a knave nor a fool. He is merely a hired gun, saying whatever his clients want or, much worse, saying whatever he thinks will cause his clients to give him more money. (Informed commentary welcome!) But, surely, we can all agree that this would be a horrible idea?

“But when the district attorney’s office learns that there are as many as 73 sexual assaults that have occurred in the last four years at Williams, they have a duty to investigate,” said Pucci. “And this is not that complicated. It’s stunning to me that Caccaviello can step back and say ‘we inferred they didn’t want to cooperate.’”

Pucci says the DA’s office could have initiated a basic criminal prosecution investigation.

“You contact Williams College. You ask them for their reports and interviews of the victims. If they don’t want to give them to you, you issue a grand jury subpoena,” he said. “The district attorney in Berkshire County has a grand jury standing and available. They issue a simple piece of paper to Williams, Williams gives them the name of the victims, and then they do the basics. The basics are laid out in the Massachusetts Executive Office of Public Safety and Security guidelines for sexual assault investigations.”

This is madness! Does Pucci really believe it or is he just saying what his clients want? Or is he just saying what he thinks his clients want to hear?

1) Has any DA in Massachusetts, or in the US, ever done this? Not that I know. (Perhaps former Williams faculty member KC Johnson, co-author of The Campus Rape Frenzy: The Attack on Due Process at America’s Universities, can comment?)

2) What would happen if Harrington did this? I assume that Williams would fight tooth-and-nail. Am I wrong? Perhaps someone at Williams — Meg Bossong ’05? — would like to see more prosecutions of Williams students? Informed commentary welcome!

3) What would happen in the courts? Harrington subpoenas. Williams resists. The judge rules that . . . What do our Eph lawyers think?

4) How does this issue — and her general relationship with Williams College — tie into Harrington’s ambitions? Unlike Caccaviello — a time-serving mediocrity who would have been happy as DA for 20 years — Harrington clearly aspires to greater things. There are two strategies that a backwoods DA might take in climbing the greasy pole of MA Democratic politics: work with powerful local institutions like Williams (in the expectation of future back-scratches in return) or relentlessly attack them in a bid to build name-recognition. Assume that Harrington wants to be a Senator someday. What advice do you have for her?

Background: WW points out that the details of the accusation are horrific (pdf). Key points:

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#1 Comment By Johnny On November 8, 2018 @ 7:25 am

There are a couple of issues here, I think. One would be what the college’s role is in this, if any at all. I don’t think the institution has a duty of care here although I may be wrong. If there is no duty of care, then the college could not be liable in any way under a negligence theory. However, there is the college’s claim that its policies “protect all members of the College community against sexual harassment and sexual violence.” (See John Doe v. Williams College document 126 filed last month) The college maintains that it not only has the right, but the duty, to investigate complaints of sexual assault regardless of the status of the complainant (alum, employee, etc) based on the fact that college’s “code of conduct applies to all members of the Williams community.” Was this alumna a member of the Williams community that night? I think so.

Given how the college defines nonconsensual sex in a much broader way than does Massachusetts rape law (Rape is when someone has sexual intercourse with a person and compels such person to submit by force and against his will, or compels such person to submit by threat of bodily injury), a civil suit might be the better road to go than pressing criminal charges.

#2 Comment By DDF On November 8, 2018 @ 7:39 am

> a civil suit might be the better road

Which raises the question: Why haven’t they filed a civil suit yet?

If I were trying to cover up an ill-thought-out drunken coupling with a false claim of rape, the last thing I would want is a civil suit, with its much more balanced opportunities for discovery, depositions, cross-examination and the like . . .

#3 Comment By Whitney Wilson ’90 On November 8, 2018 @ 9:52 am

Given that this incident (however characterized) took place at an official reunion event for (purportedly) mature adults, how should the College react to this? I’m not sure that it can, or should, do anything about this specific incident, but what about lessons learned for future events?

In the ensuing two years worth of reunions, did anyone notice anything different? Increased security? More control over alcohol consumption?

#4 Comment By PhantomJ On November 8, 2018 @ 11:28 am

Johnny – Massachusetts rape laws are actually much broader and more detailed than that, but a clumsy use of language gets in the way of their clarity. The Pucci case and most every case arising in a campus setting likely concerns capacity to consent issues, i.e. the accuser says he/she was too intoxicated (due to alcohol, drugs, etc.) to consent to what happened. Lack of capacity to consent is viewed and treated criminally as “against his/her will.”

In such cases, the prosecution must prove 1) that the intoxication rendered the complainant incapable of consent and 2) that the defendant knew or should have known that the condition rendered the complainant incapable of consenting.

I don’t remember any cases of this sort being brought in Berkshire County, but there have been several cases on the UMASS campus that were prosecuted and won by the Northwestern County DA.

#5 Comment By David Dudley Field ’25 On November 8, 2018 @ 11:58 am

there have been several cases on the UMASS campus that were prosecuted and won by the Northwestern County DA

Details, please. Do you have links to any news articles or court cases? Would love to get into the details of these cases and how they compare/contrast to various cases at Williams.

Also, since you obviously have some local legal knowledge, can you shed light on the case that the Berkshire DA did prosecute at Williams in the last few years? It may not have involved a Williams student.

#6 Comment By PhantomJ On November 8, 2018 @ 1:01 pm

#7 Comment By Johnny On November 8, 2018 @ 2:43 pm

PhantonJ, “Massachusetts rape laws are actually much broader and more detailed than that.” Not really. I directly quoted the statute: https://malegislature.gov/Laws/GeneralLaws/PartIV/TitleI/Chapter265/Section22

#8 Comment By PhantomJ On November 8, 2018 @ 4:06 pm

Johnny – Sorry, I didn’t state my point clearly. What I meant was that the APPLICATION of the statute is far broader than the language therein implies.

To wit, in capacity to consent cases, the “by force and against his will” clause is invoked against the defendant, even if the actual “force” needed to coerce an incapacitated victim is de minimis.

https://www.mass.gov/info-details/massachusetts-law-about-rape-and-sexual-assault

Commonwealth v. Blache is the case usually cited.

#9 Comment By David Dudley Field ’25 On November 8, 2018 @ 4:31 pm

Thanks to all our legal readers for these details. Much appreciated!

#10 Comment By anon On November 9, 2018 @ 5:50 pm

phantom- Kind of. You are missing certain important points though.

The conviction of Blanche was overturned on appeal. The basic elements per common law were upheld- have been the same since 1870- that standard is:

SJC agreed that the instructions were inadequate and held that the standards set forth in Commonwealth v. Burke, 105 Mass. 376 (1870), properly articulated the correct principles to govern in cases of rape where the complainant lacks the capacity to consent.

Premise #1: While generally for the crime of rape the Commonwealth must prove that the alleged sexual intercourse occurred by force and without the complainant’s consent, where the complainant is “wholly insensible so as to be incapable of consenting” (a) the element of nonconsent is satisfied; and b) the only force required for proof of the crime is “such force as was necessary to accomplish” the act of intercourse – – that is, only the force necessary to effect penetration.

Premise #2: Where the Commonwealth uses proof that the complainant has been rendered “incapable of consenting” to establish the necessary element of her nonconsent and to reduce the degree of required force, the Commonwealth should also prove the defendant’s knowledge of the complainant’s incapacitated state.

The SJC explained that over the years, the instructions given in rape cases that involved an intoxicated victim were unclear and needed clarification in order to define the Burke “wholly insensible” standard. The SJC explained that the issue here, as in Burke, is whether as a result of the complainant’s consumption of drugs, alcohol or both, she was unable to give or refuse consent. An instruction concerning capacity to consent should be given in any case where the evidence would support a finding that, “because of the consumption of drugs or alcohol or for some other reason (sleep, unconsciousness, mental retardation, or helplessness), the complainant was so impaired as to be incapable of consenting to intercourse.”This language will communicate to the jury that intoxication must be extreme before it can render a complainant incapable of consenting to intercourse. If the jury finds the Commonwealth has proved beyond a reasonable doubt the complainant’s incapacity according to this standard, that finding satisfies the element of nonconsent, and therefore, the Commonwealth need only prove the amount of force necessary to accomplish intercourse.

Commonwealth v. Blache

and…

“In this case, we return to Burke and examine once again circumstances that may affect a complainant’s capacity to consent, and whether, as Burke suggests, the defendant’s knowledge of the complainant’s incapacity must be shown. We conclude that the judge’s instructions failed to explain adequately what must be established about a complainant’s condition before the complain-ant may be deemed incapable of giving or withholding consent. For the reasons explained below, we reverse the defendant’s conviction.”

Commonwealth v. Blache

You have to prove that P was incapacitated to the point where they could not consent. “…where the complainant is “wholly insensible so as to be incapable of consenting”” That is a high mark.

Even then, there has to be mens rea.

The resulting modern standard in MA is probably closer to recklessness or negligence than actual knowing or purposeful conduct. But you still need to prove to prove at least that reasonable person would have known that the victim was incapacitated (“extreme intoxication”) to satisfy the mens rea element.

#11 Comment By anon On November 9, 2018 @ 8:09 pm

Johnny- “I don’t think the institution has a duty of care here although I may be wrong…”

If the college served the booze I would think they do. Last I checked reunion drinking was largely in house and serviced by dining staff on college property.

How trained are the bartenders? Do they (can they) shut people off? Does the college encourage drinking to intoxication at these events?

Same as if a bar or a person in their domicile continued to give a person booze after they were drunk. A reasonable person could foresee any number of events following these parties.

Drunk driving accidents, assaults… etc.

Drunken assaults during reunion are not uncommon.

The College has a duty to prevent over intoxication at its events. As in other similar situations, the duty is a function of three variables: (1) The probability (foreseeability) of a drunken incident; (2) the foreseeability/ likelihood of the gravity of the resulting injury from the drunken incident; (3) which should be commensurate with the burden of adequate precautions taken to prevent the drunken incident.

B = PL

(1) probability of a drunken incident and (2) possible gravity of an incident are high.

(1) Drunken incidents occur just about every reunion weekend.

(2) Resulting injury could be death.

(3) Not sure the college has considered its burden… but that too would be at least moderate- such as not serving alcohol at campus events to people who are visibly intoxicated.

#12 Comment By PhantomJ On November 9, 2018 @ 8:33 pm

Reposting, one set of blockquotes didn’t appear. Please fee free to delete the prior post.

anon – Sorry, I know Blache well and didn’t miss anything.

Blache was overturned on appeal because the judge’s instructions to the jury were deemed improper due to their ambiguity. The conviction was reversed because the judge failed to articulate the proper standard, not because the Commonwealth would have failed to meet that standard had it been adequately explained.

(Side note – The case was not retried because Blache had already served 5 years in prison and the defendant said she did not want to go through another trial. As for Blache, he had been accused of rape by another woman 3 years before this case, suspended from his job as a cop for 18 months, then reinstated.)

The importance of Blache is that it clarified the issues at play and provided a template for jury instructions in such cases. As I wrote in an earlier post, it established that in alcohol-related (or any other) capacity to consent cases, it must be proven that 1) the intoxication rendered the complainant incapable of providing consent and 2) the defendant knew or should have known that the condition rendered the complainant incapable of consenting.

New jury instructions were proposed, clarifying the Burke language while embracing its spirit:

“In this case, there has been evidence that the complainant [had consumed alcohol; had consumed drugs; was unconscious; etc.]. If, because of the consumption of drugs or alcohol or for some other reason (for example, sleep, unconsciousness, mental retardation, or helplessness), a person is so impaired as to be incapable of consenting to sexual intercourse, then intercourse occurring during such incapacity is without that person’s consent.

“If you find that the Commonwealth has proved beyond a reasonable doubt that the complainant was so impaired as to be incapable of consenting as I have just described, and if you further find that the Commonwealth has proved beyond a reasonable doubt that the defendant knew, or reasonably should have known, that the complainant’s condition rendered her [or him] incapable of consenting, then the Commonwealth has proved the element of lack of consent, and, on the element of force, the Commonwealth need only prove that the defendant used the degree of force necessary to accomplish the sexual intercourse – that is, to effect penetration.

“However, if the Commonwealth has not proved that the complainant lacked the capacity to consent, or if the Commonwealth has not proved that the defendant knew or reasonably should have known of such incapacity, then in order to find the defendant guilty of rape, you must find that the Commonwealth has proved the elements of lack of consent and force as I have defined these elements for you earlier.””In this case, there has been evidence that the complainant [had consumed alcohol; had consumed drugs; was unconscious; etc.]. If, because of the consumption of drugs or alcohol or for some other reason (for example, sleep, unconsciousness, mental retardation, or helplessness), a person is so impaired as to be incapable of consenting to sexual intercourse, then intercourse occurring during such incapacity is without that person’s consent.

“If you find that the Commonwealth has proved beyond a reasonable doubt that the complainant was so impaired as to be incapable of consenting as I have just described, and if you further find that the Commonwealth has proved beyond a reasonable doubt that the defendant knew, or reasonably should have known, that the complainant’s condition rendered her [or him] incapable of consenting, then the Commonwealth has proved the element of lack of consent, and, on the element of force, the Commonwealth need only prove that the defendant used the degree of force necessary to accomplish the sexual intercourse – that is, to effect penetration.

“However, if the Commonwealth has not proved that the complainant lacked the capacity to consent, or if the Commonwealth has not proved that the defendant knew or reasonably should have known of such incapacity, then in order to find the defendant guilty of rape, you must find that the Commonwealth has proved the elements of lack of consent and force as I have defined these elements for you earlier.”

The “wholly insensible” language you quoted from Burke is also addressed in an interesting section of the Blache SJC opinion. The takeaway is this: The bar SHOULD be high to establish incapacity, but reasonable people (i.e. jurors) can decide where that bar is appropriately set. There is not one-size-fits-all definition of incapacity.

a. Standard for finding of incapacity to consent. First, where drugs or alcohol are concerned, it is important to emphasize that, as Burke makes clear, consumption or even intoxication by itself is not the issue. It is a matter of common knowledge that there are many levels of intoxication, and the fact of intoxication, by itself, does not necessarily mean that the individual in question is incapable of deciding whether to assent to a sexual encounter. The question instead is whether, as a result of the complainant’s consumption of drugs, alcohol, or both, she was unable to give or refuse consent. [Note 10]

The defendant argues that a complainant should only be considered incapable of giving or refusing consent when she “was intoxicated to the extent that . . . she was rendered unconscious or nearly so, and was temporarily incapable of making any decisions regarding sexual activity.” He proposes to measure this level of impairment by looking to the complainant’s capacity to communicate consent: the legal results of Burke should apply, he asserts, only where the complainant was “unable to communicate his [or] her lack of consent to the defendant (verbally, physically, or otherwise).” [Note 11]

The defendant’s characterization of the degree of incapacity required to trigger the Burke rules regarding proof of force and lack of consent is too restrictive. The law does not require that the complainant have been rendered “unconscious or nearly so” before she may be deemed past the point of consent. [Note 12] We conclude that an instruction concerning capacity to consent should be given in any case where the evidence would support a finding that because of the consumption of drugs or alcohol or for some other reason (for example, sleep, unconsciousness, mental retardation, or helplessness), the complainant was so impaired as to be incapable of consenting to intercourse. If the jury find the Commonwealth has proved beyond a reasonable doubt the complainant’s incapacity according to this standard, that finding satisfies the element of lack of consent, and as a corollary, the Commonwealth need only prove the amount of force necessary to accomplish intercourse.

We agree with the defendant, however, that the phrase “wholly insensible,” used in Burke to describe the necessary level of in-capacity, sounds archaic and confusing. [Note 13] While both words may be used in modern discourse, the word “insensible” does not have a single, unambiguous meaning. The dictionary definition of the word lists at least six possibilities, including: “incapable or bereft of feeling or sensation[;] . . . deprived of consciousness[;] . . . deprived of . . . perception or ability to react[;] . . . archaic: lacking sense or intelligence: stupid, senseless, unreasoning[; and] unaware.” Webster’s Third New Int’l Dictionary 1168 (1993). Some of these descriptions might suggest to jurors a lower bar than the law actually requires; others might suggest a higher bar. Even though, as the judge correctly pointed out to the lawyers, the complete phrase “wholly insensible so as to be incapable of consenting” (emphasis added) identifies the appropriate inquiry, the ambiguity of the word “insensible” indicates the need for greater clarity. The formulation of the standard set forth above seeks to provide a more easily understood statement of what is required.

#13 Comment By anon On November 10, 2018 @ 12:52 pm

Phantom-

You argue that jurors “may decide” where the bar “should be” (to a degree true), but by law the prosecution MUST PROVE the victim was incapacitated by the standard given. Not just drunk. So, I kind of agree. Each case will be different.. and a jury could do anything.

Also, you can use as an affirmative defense of the defendants intoxication as well.

If the bar for this is lowered too much- then there are tens of millions of sexual assaults on campus in the United States every day. Assaults where both parties could claim incapacity.

In essence, to get a common person to convict you have to show that one party intentionally (perhaps recklessly or negligently) took advantage of the another person who was extremely drunk- to the point where they could not say no.

I don’t think it is as easy to get a case/ conviction for incapacity in MA as you originally implied. Each state is different of course. NJ would be very different.

If I understood what you were saying wrong, or if you think I am wrong, all good.