JURI 540_LEGAL MEMORANDUM II.docx - MEMORANDUM To Basyle...

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MEMORANDUMTo: Basyle Tchividjian, Esq., Chief of Felony ProsecutionsFrom: Student InternDate: March 4, 2018Re:State of South Carolina v. Derk SmithStatement of Facts: At 9:00 p.m., Inga and her friend Abby went to a bar on Hilton Head Island to celebrate Abby’s birthday. Around midnight, Inga had consumed four beers and several shots of hard liquor; consequently, Abby’s boyfriend Al arrived with his friend Derk, unbeknownst to Abby. The four agreed to go to Al’s house, where Inga consumed two more beers. Around 1:00 a.m. when Inga laid on the couch, Al and Abby detected that she appeared incoherent; therefore, they retired for the night. At the time, Derk was lying down on the floor. Inga testified that she does not recall what happened from the time that she arrived at Al’s house until the time when she noticed that she was lying 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 Inga to the hospital. Law enforcement arrested Derk for rape. Derk testified at his trial that, “I don’t know how intoxicated Inga that night was. I only saw her drink two beers at Al’s house. Then after Abby and Al went to bed, Inga rolled off the couch and found me on the floor. She said that she wantedto have sex, and so we did.”Question:Under what circumstances does South Carolina law determine rape and the withdrawal of consent referencing the mental and physical incapacity of the victim?1
MEMORANDUMBrief Answer:For a crime to be considered rape, according to South Carolina’s sexual assault laws, penetration must be involved, and this charge falls under “criminal sexual conduct” (CSC). A mentally incapacitated person is described as, a person who is temporarily unable to understand or control his or her conduct due to illness, a disorder or the influence of a substance.1There are three levels of CSC charges in the South Carolina Code of Laws and all three are felonies.2Discussion: Argument of the Prosecution:The defense counsel argues that this instruction should be given:Consent is not a defense to the crime of rape defined as sexual penetration where the victim is incapable of giving consent be- cause of intoxication. In determining whether the victim was incapable of giving consent because of intoxication, you must consider all the circumstances in determining whether the victim’s intoxication rendered her unable to exercise reasonable judgment.Sexual conduct becomes criminal when sexual touch is not mutually consented to; therefore, thislack of consent represents the crucial component of sex crimes. Inga Brown was incapable of giving consent because she was incapacitated due to intoxication and unconsciousness. She was physically and mentally incapable of consenting to sex. Derk Smith knew that Inga Brown was intoxicated and took advantage of her incapacitated state to satisfy his carnal impulses. Inga Brown’s friend, Abby Lane and her boyfriend Al Green, both have testified to Inga’s lack of

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