Should Rape (forcible compulsion) and Sexual Penetration (same) merge?
by: Ryan • May 15, 2011 • no comments
It's very likely that lawyers have bad reputations among the public at large because we ask questions like the one in the title. If you're an average person, your thought is probably, who would be so callous to care? A person is forcibly raped and you're wondering how many convictions the defendant should have?
That said, if lawyers don't talk about it, no one will, and at heart, the issue is whether courts should follow the law. Defense attorneys don't write the laws. We have a variety of opinions of what the law should be. We frequently disagree with the law. But if the legislature writes the law, should the lawyer ignore it when the defendant is a rapist?
Merger is boring, but the broader issue is not. It's memorably explored in this exchange in the play, A Man for All Seasons:
- William Roper: So, now you give the Devil the benefit of law!
- Sir Thomas More: Yes! What would you do? Cut a great road through the law to get after the Devil?
- William Roper: Yes, I'd cut down every law in England to do that!
- Sir Thomas More: Oh? And when the last law was down, and the Devil turned 'round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man's laws, not God's! And if you cut them down, and you're just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I'd give the Devil benefit of law, for my own safety's sake!
Now that I've gotten the apologia out of the way, let me return to the highly technical legal issue.
Assume a Rape I under this theory:
163.375 Rape in the first degree.(1) A person who has sexual intercourse with another person commits the crime of rape in the first degree if: (a) The victim is subjected to forcible compulsion by the person;
And assume a sexual penetration under this theory:
163.411 Unlawful sexual penetration in the first degree.(1) Except as permitted under ORS 163.412, a person commits the crime of unlawful sexual penetration in the first degree if the person penetrates the vagina, anus or penis of another with any object other than the penis or mouth of the actor and: (a) The victim is subjected to forcible compulsion;
Because of the limitation inherent in the statute ("other than the penis"), the two are distinct crimes. Each has, as the law requires, an element that the other does not.
But if they occur in the same criminal episode, there is one more requirement to keep the two crimes from merging. They must be from "separate statutory provisions."
This is a very elastic phrase. For a discussion involving some of the cases that talk about the phrase, you'll want to go to the merger memo on this website.
The best summary of the issue is in a footnote at State v. Cufaude, where the court wrote:
In White, the court reaffirmed that, to determine whether a single act violates two or more statutory provisions, a court must determine whether the legislature intended to create a single crime or two or more crimes. 346 Or at 280. That inquiry does not depend-at least not entirely-on the structural form that a criminal statute takes, although the use of a single section is one indication that the legislature intended to define a single crime. Id. Neither does the inquiry turn entirely on whether two or more charges are based on one or more statutes that address separate and distinct legislative concerns. Id. at 283. That is so because, as the court observed in White, "every statutory section that 'requires proof of an element that the others do not,' ORS 161.067(1), necessarily involves a distinct legislative concern-otherwise there would be no need for the additional element." Id. The court therefore clarified in White, that, "[A court views] the statute as a whole, looking to the text, context, and, when appropriate, legislative history of the statute. That analysis includes consideration of whether the sections, although addressing different concerns, also may address, on a more general level, one unified legislative objective." Id. at 283-84. [Emphasis added.]
Does criminalizing the penetration of the vagina with a penis address the same legislative objective as criminalizing the penetration of the vagina with a finger? I don't know the answer, but I could guess. But I raise the issue now because I want everyone to think more broadly about "separate statutory provisions." What about Attempted Murder and Assault I? Each has an element the other does not, but hard to imagine they aren't intended to address the same legislative concern?
Be creative. If we are, the quiet revolution in merger law may not be coming to an end. It might just be getting started.
