Law Commons^™

Solving The Riddle Of Rape By Deception, Luis E. Chiesa

Journal Articles

Is sex obtained by lies an act of lawful seduction or criminal rape? This deceptively simple question has baffled courts and scholars for more than a century. In an influential recent article, Yale Law Professor Jed Rubenfeld argued that our ambivalence towards this question generates what he called the “riddle of rape-by-deception”. The riddle is that if rape is defined as having sex without consent, then rape statutes should prohibit sex by deception just as much as they prohibit sex by force. Yet they don’t. So either rape statutes are guilty of a huge, inexplicable oversight or rape law is …

Actmissions, Luis E. Chiesa

Journal Articles

Most observers agree that it is morally worse to cause harm by engaging in an act than to contribute to producing the same harm by an omission. As a result, American criminal law punishes harmful omissions less than similarly harmful acts, unless there are exceptional circumstances that warrant punishing them equally. Yet there are many cases in which actors cause harm by engaging in conduct that can be reasonably described as either an act or an omission. Think of a doctor who flips a switch that discontinues life support to a patient. If the patient dies as a result, did …

Consent Is Not A Defense To Battery: A Reply To Professor Bergelson, Luis E. Chiesa

Journal Articles

In this essay I argue that, contrary to what most criminal law scholars believe, consent does not operate as a justification that relieves the actor of liability for conduct that admittedly satisfies the offense elements of battery. Rather, I contend that consent is only relevant to battery liability when, in conjunction with other factors, it modifies the definition of the crime in a way that reveals that the defendant’s act does not actually fall within the range of conduct prohibited by the offense. The argument proceeds in three parts.

In Part I, I argue that there are three ways of …

Rape And Force: The Forgotten Mens Rea, Kit Kinports

Journal Articles

In rape cases involving physical violence or express threats of physical harm, proof of the actus reus obviously does establish mens rea with respect to force as well as nonconsent. A defendant who beat or threatened to kill his victim could hardly raise a plausible argument that he did not know he was using force. But, in other circumstances, the defendant's mens rea vis-a-vis force may be less clear, and it may therefore make a difference whether a rape conviction requires proof that the defendant purposely intended to use force, or whether it is enough that he knew he was …

Dna Typing: Emerging Or Neglected Issues, David H. Kaye, Edward J. Imwinkelried

Journal Articles

DNA typing has had a major impact on the criminal justice system. There are hundreds of opinions and thousands of cases dealing with DNA evidence. Yet, at virtually every stage of the process, there are important issues that are just emerging or that have been neglected.

At the investigative stage, courts have barely begun to focus on the legal limitations on the power of the police to obtain samples directly from suspects and to use the data from DNA samples in various ways. Issues such as the propriety of "DNA dragnets" (in which large numbers of individuals in a geographic …

The Single Publication Rule: One Action Not One Law, Debra R. Cohen

Journal Articles

Recovery in one action under one state's law for violation of the right of publicity-the right to control the commercial use of one's identity-arising out of multistate publication2 seems to be the trend of the nineties. When Samsung ran a nationwide print advertisement for VCRs depicting a robot dressed to resemble her, Vanna White sued for violation of her right of publicity.3 Under California law she recovered $403,000. 4 When a SalsaRio Doritos radio commercial imitating Tom Waits's distinctive raspy and gravelly voice aired nationwide, he sued Frito Lay for violation of his right of publicity.5 Under California law he …