Saturday, April 13, 2013

Decisis Unchained

By David Rangaviz

State v. Snow, 2013 VT 19

The law of sexual assault has come a long way.

At common law—which basically means “back when Americans spoke with British accents”— a rape or sexual assault conviction required that the perpetrator used force or threatened the use of force.  Rape was “carnal knowledge of a woman forcibly and against her will.”  Sexual assault by coercion, deceit, or (most relevant for today’s case) taking advantage of the unconscious was not necessarily a crime.

Today, however, most American states define sexual assault by the absence of consent.  In other words, the burden has shifted.  Originally, the victim basically had to prove that force was used.  Today, the burden is on the perpetrator to prove that he or she acted with consent.

Today’s case is a reaffirmation of that rule.

This is what we in the game call “progress.”

Defendant was charged with sexual assault on the basis of a tragically common set of facts: a classic “he said, she said.”

What they agreed on:  The defendant and victim met at a party to celebrate New Years 2010.

That’s about it.

From there, the stories diverge …

Defendant’s version: The alleged victim called him into a bedroom, at which point he never actually had intercourse with her, but they engaged in (what the SCOV describes as) “mutual fondling,” which the victim initiated.

Victim’s version: During the party, she went into a bedroom and became “unconscious” after having “gone to sleep after feeling ill.” [Translation – She got a little drunk and passed out.  It’s ok SCOV, you can say it.  It was New Years Eve, after all.]  When she awoke, in pain, the defendant was having intercourse with her.  She immediately yelled at him and he left the room.

At trial, both sides testified, and the jury believed the victim.  Defendant was convicted, and he appealed to the SCOV.

In a unanimous opinion, the SCOV affirms the conviction.

Before reaching the merits, some background is in order for those who haven’t had jury duty.

Many questions of law are presented to appellate courts in the guise of a challenge to the jury instructions.  At the end of a trial, the judge engages in a long monologue to the jury called the “instructions,” during which he tells the jury the relevant law that they must apply to the facts of the case.  Both sides submit proposed jury instructions, they fight it out in the absence of the jury, and the judge decides how to instruct the jury (usually using some combination of the language offered by both sides, or the language of a statute or past case).

The precise words matter, and they matter a great deal.  Entire prosecutions can get thrown out on appeal solely because of small errors in the legal instructions.  Weeks spent arguing to the jury can all be for naught because of an error in the hour-long instructions that the judge provides at the bitter end of the trial.  Erroneous instructions can snatch defeat from the jaws of victory.

The importance of jury instructions arises because, as a matter of law, courts presume that juries will follow the law as it is told to them.

And the jury instructions are the only part of a trial like this.  The rest of the trial is all about the facts of the case.  Testimony is taken and evidence offered to prove what really happened.  But once the jury decides what those facts are, they can almost never be re-litigated.  Juries believe some facts and disbelieve others.  As in this case: the jury believed the victim and did not believe the defendant.  That is their role.  Juries decide the facts, and then apply the law—as provided in the instructions—to the facts they have found to decide guilt or innocence.  Those fact-based judgment calls aren’t questioned on appeal.

Appeals are the exact opposite of trials: The vast majority of attention is paid to the law, with little emphasis on the facts of the case (because they have already been decided by the jury).  Appeals are for questions of law.

This makes jury instructions a fount of issues for appeal because they are the only part of the trial that, like appeals, is 100 percent law.  Instructions are a lawyer’s dream: they are page after page of the judge solely reading aloud and describing the law.  One slip of the judge’s tongue, though, and the case might be reversed and sent back for a new trial.

So good defense attorneys closely scrutinize jury instructions after a conviction to figure out if they can mount any sort of challenge to the judge’s description of the law.  If the judge told the jury the wrong law, and we presume that the jury followed the instructions, then the defendant was erroneously convicted.  Reversal usually follows.

All that said this one’s pretty easy.

Here, defendant argued that the judge’s instruction incorrectly described Vermont’s law of sexual assault.

The relevant Vermont statute reads: “No person shall engage in a sexual act with another person and compel the other person to participate in a sexual act (1) without the consent of the other person . . . .”

The judge had instructed the jury: “The third essential element is that defendant compelled complainant to participate in the sexual act without complainant’s consent.”  The judge elaborated that “lack of consent” could be shown by showing that sexual contact occurred “without the opportunity for her to consent.”

As often happens during deliberations, the jury asked the judge to clarify his instructions.  Specifically, the jury asked whether he could clarify exactly what the term “compel” means.  In response, the judge emphasized that, unlike at common law, “no actual force is necessary to commit the offense . . . compulsion is satisfied by lack of consent alone.”

On appeal, the defendant argued that this “clarification” was an error of law.  Citing the text of the statute, defendant basically tried to go back to the common law definition of sexual assault.  He argued: The statute speaks of “compulsion” and “lack of consent” as two distinct elements.  Compulsion relates to the defendant’s conduct; lack of consent goes to the victim’s actions (or lack thereof).  By equating the two, the judge ignored the statutory text, created a redundancy in the statute, eliminated the issue of “compulsion” from the jury’s consideration, and thus omitted a necessary element of the offense for which the defendant was found guilty.  Please reverse!

Only looking at the text, this is actually a pretty tempting argument.  But the SCOV does not take the bait.  Opting not to re-litigate the “force” question, the SCOV instead simply cites precedent for the meaning of compulsion and moves on.  The SCOV has already established that “compulsion” means unilaterally engaging in a sexual act without consent.  According to the court, the trial judge’s instruction was a “nearly verbatim” recitation of this relevant law as it has been interpreted in past Vermont cases.  In legal jargon, “stare decisis”—stand by things already decided.

Behold, the power of precedent!

Knowing that Vermont law does equate compulsion with a lack of consent, the SCOV turns to the question of whether sufficient evidence had been presented to satisfy this element.  It is “self evident”—by the SCOV’s estimation—that an individual cannot consent to intercourse once asleep.  Because sexual assault on an unconscious victim was clearly the entirety of the state’s argument at trial, the victim had testified to that effect, and even the defense attorney agreed at trial that the “only issue in dispute” was the question of consent, it is an open and shut case.

Note that the SCOV did not even feel the need to engage the defendant’s textual argument.  This may be unsatisfying for litigants, and even casual observers and readers, but courts cannot refight such battles in every case, and adherence to past decisions promotes predictability and uniformity in the law. 

After this case, the question of “force” and “compulsion” in Vermont’s law of sexual assault is now fully settled, though the fact that this was done in a case that barely confronted the issue at all may seem a bit . . .  unsettling.


  1. "Today, the burden is on the perpetrator to prove that he or she acted with consent."

    Correction: under due process it's never the defendant's burden to disprove anything - including the lack of consent - until the State has proved all its elements beyond a reasonable doubt. In other words, it's not sexual assault until the state proves lack of consent. Until and unless that happens, it's not the defendant's burden to prove that sex is consensual.

  2. Obviously I was being a little colloquial. If you want to pick more nits, the preceding sentence ("Originally, the victim basically had to prove that force was used.") is incorrect too, since the victim never has to prove anything, the state does. But I was being informal to try to illustrate the change in the law. And, having spent a fair amount of time in court, functionally the burden really does seem to reside with the defendant in these cases, even if technically it does not.

    Thanks for reading.