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COA: Date-rape drug made victim 'unaware'

Jennifer Nelson
January 1, 2008
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The Indiana Court of Appeals today tackled the meaning of "unaware" in the state's statute addressing rape in regards to the victim being under the influence of a known date-rape drug. In Herman Filice v. State of Indiana, No. 49A02-0707-CR-591, Chief Judge John Baker authored the unanimous opinion that required the court for the first time to address the various legal issues surrounding the defendant's sexual contact with a woman who had Rohypnol in her system during the contact. Filice met the victim, K.S., in Indianapolis at a bar. Filice and his roommate, Amie Moorehead, were in a group with an ex-boyfriend of K.S.'s friend. Early in the evening, K.S. was reported as not having any trouble functioning at the time and went to another bar with her friend to have some drinks. The group headed to another bar, which at this time K.S. became unsteady on her feet and sat slumped over on a couch. The bartender asked Filice's group to take K.S. home because she looked in "pretty bad shape" and was disturbing other customers. Moorehead and Filice took K.S. back to their apartment. There, Moorehead asked K.S. if she wanted a ride home but noticed K.S. was not very lucid and had difficulty nodding her head. Moorehead told K.S. she would take her home and went to bathroom. About five minutes later, she saw K.S. and Filice were naked in his bedroom with K.S.'s legs around him. Moorehead noted K.S. had the same kind of slumped posture she exhibited throughout the night. Moorehead went to her room and went to bed. K.S. didn't remember much of the evening, but did remember Filice putting his penis in her mouth and repeatedly attempting to do so. She testified at trial that she felt like she was floating above herself and wanted to say something but didn't have the ability to do what she wanted. The next day, K.S. went to the hospital and she was examined by a forensic nurse examiner Agnes Purdie. Purdie noted K.S. had bruises on her mouth, shoulder, thighs, and a bite mark on the inside of her thigh. K.S. tested positive for having Rohypnol in her system, which would have been present the night she was assaulted. The state charged Filice with six offenses; Filice filed a motion to dismiss a Class B felony attempted rape charge arguing the statute that defines rape is vague and that the meaning of "unaware" differs as to its application. The trial court denied his motion and he was found guilty of the attempted rape charge and Class B felony criminal deviate conduct; he was sentenced to 10 years on each count to be served concurrently. Filice's main argument on appeal is that Indiana Code Section 35-42-4-1(a)(2) is unconstitutionally vague because it doesn't provide fair notice that attempting to have sexual contact with a person who is able to talk, walk, and perform other routine tasks is prohibited because the person is unaware due to effects of a drug that there's no evidence a defendant would know about. But the Indiana Court of Appeals found sufficient evidence that Filice knew K.S. was unaware of the sexual conduct at the time it occurred. Under Indiana Code, a person who knowingly or intentionally has sexual intercourse with a person of the opposite sex when the other person is unaware that the sexual intercourse is occurring commits rape.

The appellate court relied heavily on its 2002 decision in Glover v. State, 760 N.E.2d 1120, 1123 (Ind. Ct. App. 2002). In Glover, the court adopted the dictionary definition of "unaware" and held that a victim must be unaware the sexual act is occurring for the defendant to be guilty of rape, wrote Chief Judge Baker. The use of the word "unaware" as opposed to "unconscious" leads the court to conclude the term includes, but isn't limited to, unconsciousness, he notes. Because a victim must be unaware, and having Rohypnol in one's system can create an outwardly appearance of unawareness, the language of the statute is adequate to inform a person of ordinary intelligence to know sexual intercourse with someone in a drug-induced state of unawareness is prohibited. Filice's argument that no one can conform to the statute because a person considering having sexual contact with someone who at the time appears to be functioning adequately, but later is unable to remember doing so, could be found guilty of rape. The chief judge notes Filice's argument could be compelling if not for the fact that K.S. wasn't in a condition where she was functioning normally and she was unaware of the act occurring. Filice was there when K.S. had to be removed from the bar, and he took her home in that state. She was in the same state while the two had sexual contact. The state presented sufficient evidence to show K.S. was unaware at the time of sexual contact through Moorehead's testimony and the testimony of a doctor that said someone under the influence of the drug can go in and out of consciousness and would be under the influence of the drug regardless of how you appear. The Court of Appeals affirmed the admittance of K.S.'s drug test as evidence to show she had the drug in her system at the time of the attempted rape and that the state presented sufficient evidence to sustain his conviction for criminal deviate conduct. Regarding the trial court's refusal to tender his proposed jury instruction, Chief Judge Baker wrote that based on the evidence, even if the trial court had given Filice's proposed instruction to the jury, "it would have concluded that there was a high probability that Filice knew that K.S. was unaware while he attempted to have sexual intercourse with her. Therefore, the jury still would have rendered a guilty verdict on the attempted rape charge and Filice has not been prejudiced by any error." However, the appellate court did vacate his sentence and remanded the trial court to shorten it to eight years served concurrently based on the fact that Filice had been a law-abiding citizen up until he committed these crimes, wrote Chief Judge Baker.
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  1. It's a big fat black mark against the US that they radicalized a lot of these Afghan jihadis in the 80s to fight the soviets and then when they predictably got around to biting the hand that fed them, the US had to invade their homelands, install a bunch of corrupt drug kingpins and kleptocrats, take these guys and torture the hell out of them. Why for example did the US have to sodomize them? Dubya said "they hate us for our freedoms!" Here, try some of that freedom whether you like it or not!!! Now they got even more reasons to hate us-- lets just keep bombing the crap out of their populations, installing more puppet regimes, arming one faction against another, etc etc etc.... the US is becoming a monster. No wonder they hate us. Here's my modest recommendation. How about we follow "Just War" theory in the future. St Augustine had it right. How about we treat these obvious prisoners of war according to the Geneva convention instead of torturing them in sadistic and perverted ways.

  2. As usual, John is "spot-on." The subtle but poignant points he makes are numerous and warrant reflection by mediators and users. Oh but were it so simple.

  3. ACLU. Way to step up against the police state. I see a lot of things from the ACLU I don't like but this one is a gold star in its column.... instead of fighting it the authorities should apologize and back off.

  4. Duncan, It's called the RIGHT OF ASSOCIATION and in the old days people believed it did apply to contracts and employment. Then along came title vii.....that aside, I believe that I am free to work or not work for whomever I like regardless: I don't need a law to tell me I'm free. The day I really am compelled to ignore all the facts of social reality in my associations and I blithely go along with it, I'll be a slave of the state. That day is not today......... in the meantime this proposed bill would probably be violative of 18 usc sec 1981 that prohibits discrimination in contracts... a law violated regularly because who could ever really expect to enforce it along the millions of contracts made in the marketplace daily? Some of these so-called civil rights laws are unenforceable and unjust Utopian Social Engineering. Forcing people to love each other will never work.

  5. I am the father of a sweet little one-year-old named girl, who happens to have Down Syndrome. To anyone who reads this who may be considering the decision to terminate, please know that your child will absolutely light up your life as my daughter has the lives of everyone around her. There is no part of me that condones abortion of a child on the basis that he/she has or might have Down Syndrome. From an intellectual standpoint, however, I question the enforceability of this potential law. As it stands now, the bill reads in relevant part as follows: "A person may not intentionally perform or attempt to perform an abortion . . . if the person knows that the pregnant woman is seeking the abortion solely because the fetus has been diagnosed with Down syndrome or a potential diagnosis of Down syndrome." It includes similarly worded provisions abortion on "any other disability" or based on sex selection. It goes so far as to make the medical provider at least potentially liable for wrongful death. First, how does a medical provider "know" that "the pregnant woman is seeking the abortion SOLELY" because of anything? What if the woman says she just doesn't want the baby - not because of the diagnosis - she just doesn't want him/her? Further, how can the doctor be liable for wrongful death, when a Child Wrongful Death claim belongs to the parents? Is there any circumstance in which the mother's comparative fault will not exceed the doctor's alleged comparative fault, thereby barring the claim? If the State wants to discourage women from aborting their children because of a Down Syndrome diagnosis, I'm all for that. Purporting to ban it with an unenforceable law, however, is not the way to effectuate this policy.

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