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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. I like the concept. Seems like a good idea and really inexpensive to manage.

  2. I don't agree that this is an extreme case. There are more of these people than you realize - people that are vindictive and/or with psychological issues have clogged the system with baseless suits that are costly to the defendant and to taxpayers. Restricting repeat offenders from further abusing the system is not akin to restricting their freedon, but to protecting their victims, and the court system, from allowing them unfettered access. From the Supreme Court opinion "he has burdened the opposing party and the courts of this state at every level with massive, confusing, disorganized, defective, repetitive, and often meritless filings."

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  4. He called our nation a nation of cowards because we didn't want to talk about race. That was a cheap shot coming from the top cop. The man who decides who gets the federal government indicts. Wow. Not a gentleman if that is the measure. More importantly, this insult delivered as we all understand, to white people-- without him or anybody needing to explain that is precisely what he meant-- but this is an insult to timid white persons who fear the government and don't want to say anything about race for fear of being accused a racist. With all the legal heat that can come down on somebody if they say something which can be construed by a prosecutor like Mr Holder as racist, is it any wonder white people-- that's who he meant obviously-- is there any surprise that white people don't want to talk about race? And as lawyers we have even less freedom lest our remarks be considered violations of the rules. Mr Holder also demonstrated his bias by publically visiting with the family of the young man who was killed by a police offering in the line of duty, which was a very strong indicator of bias agains the offer who is under investigation, and was a failure to lead properly by letting his investigators do their job without him predetermining the proper outcome. He also has potentially biased the jury pool. All in all this worsens race relations by feeding into the perception shared by whites as well as blacks that justice will not be impartial. I will say this much, I do not blame Obama for all of HOlder's missteps. Obama has done a lot of things to stay above the fray and try and be a leader for all Americans. Maybe he should have reigned Holder in some but Obama's got his hands full with other problelms. Oh did I mention HOlder is a bank crony who will probably get a job in a silkstocking law firm working for millions of bucks a year defending bankers whom he didn't have the integrity or courage to hold to account for their acts of fraud on the United States, other financial institutions, and the people. His tenure will be regarded by history as a failure of leadership at one of the most important jobs in our nation. Finally and most importantly besides him insulting the public and letting off the big financial cheats, he has been at the forefront of over-prosecuting the secrecy laws to punish whistleblowers and chill free speech. What has Holder done to vindicate the rights of privacy of the American public against the illegal snooping of the NSA? He could have charged NSA personnel with violations of law for their warrantless wiretapping which has been done millions of times and instead he did not persecute a single soul. That is a defalcation of historical proportions and it signals to the public that the government DOJ under him was not willing to do a damn thing to protect the public against the rapid growth of the illegal surveillance state. Who else could have done this? Nobody. And for that omission Obama deserves the blame too. Here were are sliding into a police state and Eric Holder made it go all the faster.

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