Attempted Rape and Self Defense

Eugene Volokh posts about an interesting case with an unsatisfactory resolution:

The trouble is that it's of course impossible to tell from the news accounts — at least the ones I've seen — whether this was self-defense, or even whether there's proof beyond a reasonable doubt that it wasn't self-defense (the rule in Washington and lots of other states). If the girl really "could not recall the incident," then it's hard to tell how much to credit her account that "[Pena] wouldn't let her go until they'd had sex." She also isn't likely to be the most credible witness: She apparently has a history of "convictions for assault, theft, malicious mischief and stealing a car," and while even convicted criminals have a right to defend themselves, jurors may naturally be skeptical of their claims (especially when some of the crimes, such as theft, are evidence of dishonesty).

Also, it's not completely clear what her (paraphrased) statement that "He wouldn't let her go until they'd had sex" means. If it means that he was essentially trying to rape her by physically restraining her, or credibly threatening her with violence, and that she killed him to prevent or interrupt the rape, then that would be self-defense (if her story is believed). But if it means that he did rape her, and then let her go, and she killed him because of what he had done to her, then that would indeed be voluntary manslaughter: An intentional homicide that wasn't justified by the need to defend against a crime (since the crime was over), but that is a lesser crime than murder because of the provocation created by the just-completed crime. It may well be that the facts are clearer than the somewhat ambiguous statement; but the press accounts I saw did not make those facts clear.

So this, I think, helps show the inevitable problems that will sometimes arise even with a law of self-defense that is at bottom fairly sound. The problem is often not in the law, but in figuring out the facts, and in predicting how a jury will react to the contested claim of facts (especially when the defendant was drunk, or when the defendant's criminal record makes the defendant a less than normally credible witness). And in such a situation, it's not uncommon for the defense and the prosecution to reach a plea agreement to avoid the inevitable uncertainties of trial.

I would add that the problem isn't unique to self-defense cases. Any time that a prostitute alleges rape, the accusations are viewed with suspicion. When someone with a criminal history of that length and substance reports a rape, it is doubtful that charges will be pressed. So, the application of a similar conclusion in a self-defense fact pattern is unsurprising.

Comments

[Daniel]

http://www.santafenewmexican.com/Local%20News/Juveniles-charged-in-hazing-at-NM-high-school

I invite people to consider the linked case. No-one died. Yet I'm betting that these young men will get stiffer sentences than this girl did. Indeed, she gets to remain unidentified while the men, not even found guilty yet, have been publicly shamed.

I sincerely doubt that if we were to change the sex of the killer we would be look an a 2 1/2 year juive sentence.

[Mheald]

It's ironic that people are less willing to believe that she was raped (or threatened with rape) because of her criminal history considering that women like her are often targetted by rapists for precisely that reason. Because she was a prostitute (and had legal trouble in the past) she was an easy target, not a "credible witness."

[Mheald]

It's ironic that people are less willing to believe that she was raped (or threatened with rape) because of her criminal history considering that women like her are often targetted by rapists for precisely that reason. Because she was a prostitute (and had legal trouble in the past) she was an easy target, not a "credible witness."