Make a Donation

Consider making a donation to support SHAKSPER.

Subscribe to Our Feeds

Current Postings RSS

Announcements RSS

Home :: Archive :: 1998 :: August ::
Re: MM Legal Question
The Shakespeare Conference: SHK 9.0709  Saturday, 1 August 1998.

[1]     From:   Charles D. Adler <
 This e-mail address is being protected from spambots. You need JavaScript enabled to view it
 >
        Date:   Thursday, 30 Jul 1998 15:04:42 -0400
        Subj:   Re: SHK 9.0703  Q: MM Legal Scholars

[2]     From:   Charles D. Adler <
 This e-mail address is being protected from spambots. You need JavaScript enabled to view it
 >
        Date:   Thursday, 30 Jul 1998 15:37:10 -0400
        Subj:   MM Question for Legal Scholars [ADDENDUM]

[3]     From:   James P. Lusardi <
 This e-mail address is being protected from spambots. You need JavaScript enabled to view it
 >
        Date:   Thursday, 30 Jul 1998 15:15:26 -0500 (CDT)
        Subj:   RE: SHK 9.0703  Q: MM Legal Scholars

[4]     From:   Fran Barasch <
 This e-mail address is being protected from spambots. You need JavaScript enabled to view it
 >
        Date:   Thursday, 30 Jul 1998 18:45:06 EDT
        Subj:   Re: SHK 9.0703  Q: MM Legal Scholars

[5]     From:   Alicia Connolly-Lohr <
 This e-mail address is being protected from spambots. You need JavaScript enabled to view it
 >
        Date:   Thursday, 30 Jul 1998 19:43:15 EDT
        Subj:   Re: SHK 9.0703  Q: MM Legal Scholars

[6]     From:   David Lindley <
 This e-mail address is being protected from spambots. You need JavaScript enabled to view it
 >
        Date:   Friday, 31 Jul 1998 08:27:17 GMT
        Subj:   Re: SHK 9.0703  Q: MM Legal Scholars

[7]     From:   Ruth Martin <
 This e-mail address is being protected from spambots. You need JavaScript enabled to view it
 >
        Date:   Friday, 31 Jul 1998 13:10:37 +0100
        Subj:   SHK 9.0703  Q: MM Legal Scholars

[8]     From:   Laura Graser <
 This e-mail address is being protected from spambots. You need JavaScript enabled to view it
 >
        Date:   Friday, 31 Jul 1998 20:14:45 -0700
        Subj:   MM: Angelo's legal liability


[1]-----------------------------------------------------------------
From:           Charles D. Adler <
 This e-mail address is being protected from spambots. You need JavaScript enabled to view it
 >
Date:           Thursday, 30 Jul 1998 15:04:42 -0400
Subject: 9.0703  Q: MM Legal Scholars
Comment:        Re: SHK 9.0703  Q: MM Legal Scholars

>As I understand rape laws in general,
>consent may not be legally obtained by threats or force, but I have not
>been able to discover whether or not these threats must be directed at
>the victim, or whether a threat of bodily harm against a third person in
>lieu of sexual favors would be grounds to charge a person with attempted
>rape. I would be interested in hearing opinions either about the law in
>Shakespeare's time or in our own era.

New York's Penal Law is fairly typical on this point.  It defines the
various sexual offenses as sexual contact (ranging from intercourse down
through touching "intimate parts") without consent. Lack of consent
comes from either "incapacity to consent" (under age, intoxicated,
mentally defective, etc.) or "forcible compulsion."  Forcible compulsion
means to compel either by the use of physical force or a "threat,
express or implied, which places a person in fear of immediate death or
physical injury to himself, herself or another person, or in fear that
he, she or another person will immediately be kidnapped."

Angelo's defense, therefore, is not that the threat was directed against
Claudio rather than Isabella but that it was not immediate.

Charles.

[2]-------------------------------------------------------------
From:           Charles D. Adler <
 This e-mail address is being protected from spambots. You need JavaScript enabled to view it
 >
Date:           Thursday, 30 Jul 1998 15:37:10 -0400
Subject:        MM Question for Legal Scholars [ADDENDUM]

Sorry, my post was "sent" before it was completed.  Continuing ...

The lack of immediacy of the threat is one issue.  A more interesting
one is that the threat is not to torture Claudio but to refrain from
committing the "corrupt" act of pardoning him.  The sentence is legal.
It is the offer to commute it in exchange for sexual favors that is
not.  Of course, the immediacy requirement probably derives from the
presumed ability of the intended victim to report the threat.
Obviously, when it comes from the incarnation of political power. "To
whom should I complain? Did I tell this, Who would believe me"

But this is a modern analysis. English law at the in the early 17th
century did not, so I believe, require actual or threatened physical
force.  Rape, at that time, was defined as "the unlawful and carnal
knowledge and abuse of any woman above the age of ten years against her
will." See, 3 Coke's Institutes 60 (1628). If that is so, Angelo seems
quite guilty.

Charles.

[3]-------------------------------------------------------------
From:           James P. Lusardi <
 This e-mail address is being protected from spambots. You need JavaScript enabled to view it
 >
Date:           Thursday, 30 Jul 1998 15:15:26 -0500 (CDT)
Subject: 9.0703  Q: MM Legal Scholars
Comment:        RE: SHK 9.0703  Q: MM Legal Scholars

Dear Michael:

Though I'm probably telling you what you already know, I'll venture.
The issue is not so much legal as it is moral and religious.  In
Isabella's view of things, her consent, though given under duress, would
be damning: "Better it were a brother died at once / Than that a sister,
by redeeming him, / Should die forever" (2.4.107-09).  That she thinks
her soul is at stake is what makes Angelo's demand esp. nasty.  He
intends spiritual rape and murder.

Jim Lusardi

[4]-------------------------------------------------------------
From:           Fran Barasch <
 This e-mail address is being protected from spambots. You need JavaScript enabled to view it
 >
Date:           Thursday, 30 Jul 1998 18:45:06 EDT
Subject: 9.0703  Q: MM Legal Scholars
Comment:        Re: SHK 9.0703  Q: MM Legal Scholars

To Michael Friedman:  Hi, Michael.  I've done some research on
Defamation law (i.e. falsely accused wives/bride).  It seems to me the
legal issue is not rape but fornication-anything outside of wedlock
could be prosecuted in common or canon law. In any case, it is clear
that Isabella must CHOOSE; thus, it cannot be a matter of rape.  To
follow the reasoning you suggest, Isabella's choice to let brother die
would make her accessory to murder, which, of course, is not the case at
all.  Fran Barasch

[5]-------------------------------------------------------------
From:           Alicia Connolly-Lohr <
 This e-mail address is being protected from spambots. You need JavaScript enabled to view it
 >
Date:           Thursday, 30 Jul 1998 19:43:15 EDT
Subject: 9.0703  Q: MM Legal Scholars
Comment:        Re: SHK 9.0703  Q: MM Legal Scholars

Michael

Here's a lawyerly answer for you: it depends.  Although rape is a common
law crime, inherited from good old England, the actual elements of the
crime, the wording of a statute, may differ slightly from one
jurisdiction to another. It depends on how the statute is working.
Nowadays, many jurisdictions have statutes with 1st degree sexual
assault to 4th degree sexual assault.  These were created are to ensure
that sexual assault cases which don't meet the standards of rape, can
still be prosecuted.  Under the Uniform Code of Military Justice (that's
the only criminal code I have laying around the house), the elements of
rape are: (1) that the accused committed an act of sexual intercourse;
and (2) That the act of sexual intercourse was done by force and without
consent.

I think the force must be upon the victim, never a third party.  Even if
you could find a reported case in which a victim "submitted" to rape due
to threats against another, (no so far fetched at all), that still is a
form of mental duress, force.   A threat of physical harm upon a third
person could indeed cause a victim to "submit" to rape.  I think a wise
prosecutor would make the argument that such a scenario would constitute
a psychological "force" upon the victim.  The third party has nothing to
do with the actual elements of the crime.  Think of it as a surrounding
circumstance of the crime, but not the core of the crime itself. Even
though the physical threat is directed at the third person, it may also
equate to a form of force upon the victim.  So, yes, I think the victim
MUST be the object of the force to constitute the crime of rape today.
A case with those facts might be tough to prosecute but perhaps if it
were a mother who is the victim and she is victimized to avoid harm to
her child, a jury might be persuaded to make a finding that those facts
rose to the level of a "force."

The threat to the third person might well constitute a whole other
crime.  Some jurisdictions have the crime of "communicating a threat,"
the elements of which do not require the "victim" or object of the
threat to actually hear the threat himself or herself. Hope that helps
you.

[6]-------------------------------------------------------------
From:           David Lindley <
 This e-mail address is being protected from spambots. You need JavaScript enabled to view it
 >
Date:           Friday, 31 Jul 1998 08:27:17 GMT
Subject: 9.0703  Q: MM Legal Scholars
Comment:        Re: SHK 9.0703  Q: MM Legal Scholars

On the question of rape,  there is an article by Barbara J Baines,
'Effacing Rape in Early Modern Representation' in ELH, 65 (1995) 69-98,
which contains a discussion of the issue of consent, and many references
both to Early Modern and contemporary discussions of the issue.  This
may help - though it does seem clear that there was a gap between what
the law said, and what in practice happened in the prosecution of rape.

(One tiny example of a female response to the question of punishment for
rape is the comment by Miranda - in the speech in Tmp. 1.2.  350ff,
which is often given to Prospero - on Caliban who was 'Deservedly
confined into this rock, Who hast deserved more than a prison'.)

David Lindley
School of English
University of Leeds
email 
 This e-mail address is being protected from spambots. You need JavaScript enabled to view it
  or 
 This e-mail address is being protected from spambots. You need JavaScript enabled to view it
 

[7]-------------------------------------------------------------
From:           Ruth Martin <
 This e-mail address is being protected from spambots. You need JavaScript enabled to view it
 >
Date:           Friday, 31 Jul 1998 13:10:37 +0100
Subject: Q: MM Legal Scholars
Comment:        SHK 9.0703  Q: MM Legal Scholars

I'm a legal librarian not a lawyer so I'm only quoting from what I've
found: Halsbury's Laws of England states that in cases of alleged rape,
submission to sex induced by fear is not consent.  It doesn't
distinguish between fear for one's only safety and that of another
person.  The Sexual Offences (Amendment) Act 1976 which defines the
meaning of rape in English law does not even go this far to specifying
the nature of consent - it is entirely a matter for the jury to decide.

Can't tell you about the law in Shakespeare's time, our stock doesn't go
back that far!

[8]-------------------------------------------------------------
From:           Laura Graser <
 This e-mail address is being protected from spambots. You need JavaScript enabled to view it
 >
Date:           Friday, 31 Jul 1998 20:14:45 -0700
Subject:        MM: Angelo's legal liability

Under Oregon law, Angelo's  mere proposition ("have intercourse with me
and I won't torture your brother") isn't a crime, and wouldn't be until
Angelo took a substantial step-actually torturing the brother, for
example, would be enough (that of course also would be an assault of the
brother by itself), or putting his slimy hands on Isabella by telling
her he IS torturing her brother.

If he did either of those acts (tortured the brother or put his hands on
her) it would be an attempted rape.  If he actually had intercourse with
Isabella it would be rape (because her submission to intercourse was not
voluntary and thus was not legal "consent").

For another twist: having intercourse with the "willing" Mariana is
under Oregon law, an attempted rape.  In any jurisdiction, if the female
did not consent it would be a rape. Under Oregon law, because Angelo
THOUGHT the female was not consenting, he thought he was committing
rape.  While he was not committing a legal rape (because Mariana did
really consent-so there was an element of the crime missing) he was
committing an attempted rape.

In the words of Oregon Revised Statute (taken from the Model Penal Code,
and thus probably true in other states): "In a prosecution for an
attempt[ed crime], it is no defense that it was impossible to commit the
crime which was the object of the attempt where the conduct engaged in
by the actor would be a crime if the circumstances were as the actor
believed them to be."  ORS 161.435.

Example: if I break into a house today and steal the silver, but the day
before the now-former-owner deeded it to me with all the property in it
(but didn't tell me about the transfer), I can't be guilty of a burglary
because it was my house (and I had a right to be in it).  I was trying
to commit a burglary but couldn't due to "impossibility"-it is
impossible for me to trespass on my own property or to steal my own
silver.  "Impossibility" is a defense to burglary; but it's not a
defense to attempted burglary.  So I am guilty of attempted burglary.

Shooting a person who the would-be killer thinks is sleeping, but who
actually died of a heart attack an hour before: the would-be killer is
guilty of attempted murder.

Similarly, Angelo was guilty of attempted rape when he had intercourse
with Mariana.

I think either or both Isabella and Mariana are the "victims" of the
attempted rape.  I'd charge two counts, if he were convicted of both,
the counts would merge and he would only serve one sentence.

So members of this list who have read this far: aren't you glad you
became English teachers and actors, not never did go to law school?

Laura Graser, Portland, Oregon (who often wishes she were an English
teacher or an actor).
 

Other Messages In This Thread

©2011 Hardy Cook. All rights reserved.