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. I think the cops are doing a great job locking up criminals. The Murder rates in the inner cities are skyrocketing and you think that too any people are being incarcerated. Maybe we need to lock up more of them. We have the ACLU, BLM, NAACP, Civil right Division of the DOJ, the innocent Project etc. We have court system with an appeal process that can go on for years, with attorneys supplied by the government. I'm confused as to how that translates into the idea that the defendants are not being represented properly. Maybe the attorneys need to do more Pro-Bono work

  2. We do not have 10% of our population (which would mean about 32 million) incarcerated. It's closer to 2%.

  3. If a class action suit or other manner of retribution is possible, count me in. I have email and voicemail from the man. He colluded with opposing counsel, I am certain. My case was damaged so severely it nearly lost me everything and I am still paying dearly.

  4. There's probably a lot of blame that can be cast around for Indiana Tech's abysmal bar passage rate this last February. The folks who decided that Indiana, a state with roughly 16,000 to 18,000 attorneys, needs a fifth law school need to question the motives that drove their support of this project. Others, who have been "strong supporters" of the law school, should likewise ask themselves why they believe this institution should be supported. Is it because it fills some real need in the state? Or is it, instead, nothing more than a resume builder for those who teach there part-time? And others who make excuses for the students' poor performance, especially those who offer nothing more than conspiracy theories to back up their claims--who are they helping? What evidence do they have to support their posturing? Ultimately, though, like most everything in life, whether one succeeds or fails is entirely within one's own hands. At least one student from Indiana Tech proved this when he/she took and passed the February bar. A second Indiana Tech student proved this when they took the bar in another state and passed. As for the remaining 9 who took the bar and didn't pass (apparently, one of the students successfully appealed his/her original score), it's now up to them (and nobody else) to ensure that they pass on their second attempt. These folks should feel no shame; many currently successful practicing attorneys failed the bar exam on their first try. These same attorneys picked themselves up, dusted themselves off, and got back to the rigorous study needed to ensure they would pass on their second go 'round. This is what the Indiana Tech students who didn't pass the first time need to do. Of course, none of this answers such questions as whether Indiana Tech should be accredited by the ABA, whether the school should keep its doors open, or, most importantly, whether it should have even opened its doors in the first place. Those who promoted the idea of a fifth law school in Indiana need to do a lot of soul-searching regarding their decisions. These same people should never be allowed, again, to have a say about the future of legal education in this state or anywhere else. Indiana already has four law schools. That's probably one more than it really needs. But it's more than enough.

  5. This man Steve Hubbard goes on any online post or forum he can find and tries to push his company. He said court reporters would be obsolete a few years ago, yet here we are. How does he have time to search out every single post about court reporters and even spy in private court reporting forums if his company is so successful???? Dude, get a life. And back to what this post was about, I agree that some national firms cause a huge problem.