State in the Interest of MTS case brief

 

State in the Interest of MTS: She testifies that she fell into a heavy sleep and only remembers waking up with MTS atop her and penetrating her. She immediately told him to get off. MTS contends that they were consensually kissing and eventually proceeded to have sex. He thrust 3 times and on the 4^th she stopped him. The court does not believe either of them but they nevertheless find no consent. The law states that rape is by physical force or coercion. The court says that the statute provides for force but that you can’t have sex or have penetration without using force (this is an obvious dodge of legislative intent and the MPC definition). Thus in NJ, penetration w/o a definite no is de facto violent (physical force)!

1. The MTS case is widely thought of as…whatever you think of the result, it is clearly not what the legislature had in mind. It is a dodge around the rule by making force = penetration.
2. Affirmative Yes v. Affirmative No: Schullhofer Example: Taking Sexual Autonomy Seriously:
   1. In the medical context, we think it is assault if no affirmative yes is given then why do we feel in the rape context that an affirmative yes is not necessary?
      1. The rapist is even less sympathetic then a doctor – at least the doctor knows what is best for you but a rapist surely doesn’t – you know what is best for you!
   2. But a medical context is not spontaneous and in the sexual world, maybe people thrive on the ambiguity of consent…it’s like a game…a hunt / chase situation!
   3. You’re also not insulting the doctor by having such a structured consent procedure. There may be something destructive with personal relationships to have affirmative consent b/c trust may be an issue.
      1. Should BOTH men and women have to Affirmatively say yes or no?
3. Non-Physical Threats:
   1. If you go for a rape law that requires an Affirmative YES (i.e. unless you have a yes, rape), then non-physical threats or coercion don’t matter:
      1. Ex: Wisconsin’s law:
   2. If you have a regime where an Affirmative NO followed by sex = rape, you don’t have to worry about coercion in the same sense
      1. Ex: NY requires an affirmative NO.