In April of this year, the Sexual Violence Legal News (SVLN) submitted an amicus brief to the Massachusetts Supreme Judicial Court on Commonwealth v. Urban, a rape case involving an intoxicated victim. Jennifer Cochran, Megan Kral and Susan Smith, all WLC members, had the unique opportunity to work on this project with Professor Murphy by performing research and drafting arguments for inclusion in the amicus.
According to Massachusetts law, the prosecution must establish two elements: 1) that the victim did not consent to the sexual act, and 2) force. In cases where the victim is incapacitated (drunk, drugged, unconscious), the judge instructs the jury that if they find that the victim has been drinking, she has to be "utterly senseless" or "wholly insensible" to warrant a finding that she did not consent to the sexual act. The amici argued that this was a ridiculously high standard and that juries should only be given a general instruction that they may consider whether alcohol affected the victim's ability to consent.
This is an important case that could greatly impact the lives of victims because it is challenging an instruction that wrongly focuses on the victim's actions. This is not the case in murder cases where the defendant can say he was too drunk to form the intent to murder his victim and if successful, his crime will be mitigated to a lesser offense. In almost every area of the law, the Court protects intoxicated or incapacitated persons from their drunken actions - you can't execute a will if you're drunk, your contract won't be honored if you contract knowingly with another party who is drunk, and yes, you just might not be convicted of first degree murder if you claim you were drunk at the time.
Professor Murphy will present the amici arguments in an oral argument before the SJC on Monday, October 1, 2007 . A webcast of the argument will be available live while the case is being argued and may also be viewed at a later time through the Suffolk Law School's archives at
http://www.suffolk.edu/sjc/.
