Scienter Requirement Applies to Each Statutory Element in Rape

By Robyn Hagan Cain on December 13, 2012 | Last updated on March 21, 2019

There aren't many rape cases in the federal courts, so we rarely write about rape appeals. That's probably a good thing, because we get kinda angry when a defendant concedes that he had sex with the victim, and then gets a new trial.

This is one of those anger-inducing cases.

According to the Eighth Circuit Court of Appeals, a man who had sex with a completely blitzed woman deserves a new trial because the jury wasn't properly instructed on mens rea.

Last year, Larry Rouillard was convicted of knowingly engaging in a sexual act with a woman when she was incapacitated to consent or decline. The incident occurred on the Santee Sioux Indian Reservation, so Rouillard was charged in federal court.

Rouillard and the "alleged" victim were drinking at a home on the reservation. They had known each other for approximately eight months, but were not romantically or sexually involved, according to court documents.

Her version: After consuming "approximately 10 drinks," she went to her bedroom alone and shut the door. When she woke the next morning, she had no recollection of having sex with Rouillard, but circumstances led her to believe she had been raped.

His version: The pair went to the bedroom together, talked, kissed, and had sex. She was awake and consented.

The jury found Rouillard guilty of violating 18 U.S.C. § 2242(2), which prohibits knowingly engaging in a sexual act with another person if that other person is incapable of appraising the nature of the conduct.

Rouillard argued on appeal that the statute requires that the defendant have knowledge of the victim's incapacity or inability to consent. He said the lower court erred in rejecting his proposed jury instruction that would have required the jury to find that Rouillard knew that the woman was "incapable of appraising the nature of the conduct, or that she was physically incapable of declining participation in, or communicating an unwillingness to engage in, that sexual act."

The Eighth Circuit Court of Appeals agreed with Rouillard, and remanded the case for a new trial.

That's not to say that the appellate court doesn't appreciate that rape is traumatic. The court kindly noted that "sex crimes committed against the vulnerable ... are particularly egregious and dehumanizing," and that the "harm experienced by a victim is not alleviated where the assailant is acquitted based on his claim that he did not know that the victim was incapacitated." (No, really?)

But after that outpouring of sympathy, the Eighth Circuit concluded that the presumption of a scienter requirement should apply to each of the statutory elements that criminalize otherwise innocent conduct. Thus, the statute requires a defendant's knowledge that the other person was incapacitated.

If you're trying a similar rape case, try to minimize the court-induced harm -- make sure the jury instruction properly explains the requisite state of mind.

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