Free Republic
Browse · Search
News/Activism
Topics · Post Article

To: Cboldt
I'd say, "that depends." Obviously, she didn't consent to sex of any sort, nevermind rape. Statutory rape, FWIW, is typically invoked when both parties consent to sex, but the sex is illegal anyway.

Well, when a case goes to trial, anything can happen and bad judges/juries make bad decisions all the time.

My point is that this kid, in this situation, cannot legally assume this risk. She cannot impliedly assume the risk because you cannot impliedly assume the risk of damage to yourself because of someone else's criminal conduct. She cannot expressly assume the risk because she is a minor, she is under duress and/or she may not be mentally capable.

The very public policy and legal reasoning behind the crime of statutory rape necessarily obviates her ability to assume the risk of statutory rape.

Could an argument be made the other way? Of course, and clearly it has been. But as a fundamental matter of law, assumption of the risk is not a valid legal defense here.
81 posted on 09/19/2014 10:38:36 AM PDT by caligatrux (...some animals are more equal than others.)
[ Post Reply | Private Reply | To 78 | View Replies ]


To: caligatrux
I was pointing out that the risk wasn't statutory rape (sex where everybody involved consented), it was assault and rape, being in a boys bathroom at his invitation to have sex.

The other point I assert is that defendant isn't barred from the defense of assumption of the risk on account of plaintiff's age.

If she was under duress, the affirmative defense fails, because in order to assume the risk, one has to act voluntarily, of free will. Same goes for mental incapability, maybe she didn't really understand the risk (i.e., she assumed, incorrectly, that a protector would be there, based on the school's implied promise to protect her).

You had originally said that the affirmative defense fails because she is a minor. That is incorrect as a matter of law. You also said the risk was statutory rape, which I say is wrong because statutory rape is a consensual but illegal act. The risk was rape or assault. In a criminal trial against the rapist, the rapist can't use the affirmative defense of assumption of the risk. I also provided a link to a piece that discusses negligence in light of criminal acts, where negligent defendant doesn't get out of liability just because the act committed (by others) was a crime. I blockquoted a case where the crime was a rape, at a school, and the defendant was the school.

82 posted on 09/19/2014 12:13:07 PM PDT by Cboldt
[ Post Reply | Private Reply | To 81 | View Replies ]

Free Republic
Browse · Search
News/Activism
Topics · Post Article


FreeRepublic, LLC, PO BOX 9771, FRESNO, CA 93794
FreeRepublic.com is powered by software copyright 2000-2008 John Robinson