To: Professor Tchividjian
From: Annamarie Morehead
RE: Withdrawal of Consent
In regard to the two competing jury instructions presented, how should the courts rule?
What arguments are present in favor of or against each instruction?
Statement of Facts
Igna, arrived at a bar on Hilton Head Island at 9pm accompanied by her friend Abby. It
was Abby’s birthday. By Midnight, some 3 hours later, Igna had consumed four beers and several
shots of hard liquor. Abby’s boyfriend arrived at the bar at midnight as well accompanied by his
friend Derk. Inga did not know Derk. The four agreed to head to Al’s home, once there Inga
consumed 2 more beers. Abby and Al both noticed and noted that Inga seemed incoherent when
she laid down on the living room couch at 1am. Abby and Al both also went to bed at this point
as well. Derk however was laying down on the floor. Inga has since stated that she does not
remember any of the time between arriving at Al’s house and waking up on the floor with Derk
on top of her engaging in sexual intercourse. Inga pushed Derk off and screamed for Abby and
Al who took her to the hospital immediately.
Police then arrested Derk for rape. Derk has testified that he didn’t know how intoxicated
Inga was the night of the incident, as he had only witnessed her consume the two beers at Al’s
House. He stated that she rolled off the couch onto him and told him she wanted to have sex, so
he acted accordingly. The Prosecution and Defense have presented competing jury instructions
for the case. The two instructions are as follows.
The prosecution would like the following instruction to be given to the jury. “Consent
is not a defense to the crime of rape, defined as sexual penetration where the victim
is incapable of giving consent due to intoxication. In determining whether the victim