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405. Consent defense

CBS News interviewed the psychologist David Lisak about "non-stranger rapes."  In just a few minutes he says a number of very interesting things.  For example, what if we prosecuted other crimes--say, auto theft--the way we prosecute rape?  Imagine the cross-examination:

Q.  It is true, sir, is it not, that you, quote, don't remember, unquote, whether you locked your doors?

A.  But I always do lock them.

Q.  Please just answer the question.  You have no specific memory of locking the car doors on Monday the 11th at approximately 7:15 a.m. when you left your car at the station.  Is that correct?

A.  Yes.

Q.  So you might have left the car unlocked.  Correct?

A.  I guess so.

Q.  Yes, it's possible you left the car unlocked?

A.  Yes.

Q.  Thank you.  And I believe you testified on direct examination that you did not have an alarm installed in the car.  Did I remember that right? 

A.  Yes.

Q.  And yet you were aware that alarms can be an effective deterrent, were you not? 

A.  Yes.

Q.  You knew that a car alarm will sometimes deter those who might want to get into your car and drive it away.  You knew that, right?

A.  Yes.

Q. But even though you knew it was a deterrent against someone getting into your car and driving away, nonetheless you made the conscious decision not to deter people from doing that.  Is that correct?

A.  If you want to put it like that.

Q.  That's a yes?

A.  Yes.

Q.  Thank you.  Now, was your wife upset when she found out your car was gone?

A.  Of course she was.

Q.  Did you hate to tell her? 

A.  Of course.

Q.  Wished you didn't have to confess?

A.  Wished I didn't have to tell her.

Q.  Did you tell her you left the car unlocked?

A.  No.

Q.  You didn't tell her that?

A.  No.  It wasn't true.

Q.  I thought you just said you didn't remember.

A.  I always locked it when I left it at the station.

Q.  But you happen not to remember doing so on this particular day?

A.  I'm sure I did.

Q.  But you don't specifically remember.

A.  No, I don't specifically remember.

Q.  Hmmm.  [Significant glance at the jury.]

And then the closing argument:

Ladies and gentlemen, you heard the so-called victim, sitting in this chair, having taken an oath to tell the truth, telling you that he deliberately chose not to deter those who might want to take his car.  If you choose not to deter something, that's the same as agreeing to let it happen.  You can't have it both ways.  Either you deter, or you consent. 

It's very convenient that he supposedly can't remember whether he left his car unlocked that day.  Very convenient lapse of memory.  But the fact is, ladies and gentlemen, that we didn't hear anything about a so-called "grand theft auto" until all was  all said and done, after he he realized how very upset his wife was going to be.  Once he knew he would be getting in trouble, then, very conveniently, we start hearing about, "Oh, yes, I don't actually remember if I left the car unlocked." 

Well, of course he's going to say that.  You heard him say how much he hated having to face his wife.  He knew what the reaction was going to be.  But that was only afterwards.  Ladies and gentlemen, even if we believe his convenient lapse of memory about leaving his car unlocked, even if we believe his car door locks were saying "no," his lack of a car alarm was telling my client, "Yes, yes, take me."

We ask you to return a verdict of not guilty.  Thank you.

Reader Comments (2)

I do a lot of "non-stranger" rape allegations in military courts-martials. This is not exmplary of the type of cross-examination I do of complaining witnesses. Sure, some of the questions are similar. And yes the motive to lie comes from wanting to protect an ongoing relationship. Morning after remorse, fear of gossip about casual sex getting back to the husband, boyfriend, are motivators to make a false allegation. But beyond that I find this far-fetched. I don't think thefts are defended on a theory of consent are they? The issue in a rape is consent and whether or not the complaining witness lead the accused to have an honest and reasonable belief the complaining witness was consenting. I might add that 100% of the cases I do have alcohol on both sides, so memory and all the issues of memory become relevant.
November 12, 2009 | Unregistered Commentermljucmj
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May 26, 2010 | Unregistered CommenterSniderLIZ27

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