Aryn Emert Street Law/CEPS Celebrity: A Separate Legal Standard? Hypothetical: Miami High School’s football team, the Bobcats, completed their past season with a losing 2-16 record. Despite their need for new textbooks and computers for their students, the previous seasons’ ticket sales netted them a trifling $500 profit. Along came Joe McDonald, a star running back whose unbelievable ability enticed fans to the stadium. Not only did Joe rush for 2,831 yards and score 33 touchdowns during his senior year, but for the first time, with Joe leading the team, the Bobcats were expected to make it all the way to the state championship. Joe’s presence on the field not only rescued the Bobcat’s on-field situation, but ever since Joe draped himself in the Blue and Gold, the school’s profits rose to $2000 from ticket sales. It was unquestionable that Joe’s presence on the team was the saving grace for the Miami Bobcats. As the star athlete at Miami High, Joe was extremely popular with the ladies. He constantly had girls asking him for his phone number, and had no difficulties finding dates. One girl was especially attractive to Joe. Nicole Rollins was a freshman, and four years Joe’s junior. She was not fond of football, nor of Joe’s reputation, but Joe pursued her numerous times, always unsuccessfully. One night, however, upon returning to the school after an away game, Joe continued his courtship. This time the result was a sexual experience that took place on the bathroom floor at the school. Numerous faculty members, including several of Joe’s coaches, heard about the incident, and knew that sexual conduct between an 18 year old and a 14 year old was illegal. However, with the state championship only days away, they attempted to cover up the incident. Days before the championship, Joe was arrested and charged with seconddegree lewd and lascivious battery on a minor. A few days after his arrest, the coach put him back on the field, allowing him to play in the state championship. Joe earned the Bobcats a victory, and earned the school over $10,000 in profits from fans alone. Discussion Questions: 1. What are your initial thoughts after reading the hypothetical? 2. Do you think Joe should have been able to play in his high school championship? Why/Why not? 3. If you were a coach, what would you have done? What if you were an assistant coach who recommended that Joe be benched, and the coach insisted on playing Joe, anyway? 4. Do you think it matters if the sexual conduct was consensual or not? (Refer to legal resources at bottom of the lesson) In what way? 5. What are your opinions of the notion “innocent until proven guilty”? Do you think the situation would be different if Joe was actually convicted at the time of the championship? 6. Should Joe’s playing ability enter into the decision as to whether he should play or not? Should Joe’s ability to attract fans, and therefore profits, enter into the decision to play him or not? Why? Why not? THE REAL STORY: This story is based loosely on an incident that occurred involving Antwain Easterling, a student who attended Northwestern Senior High in 2006. News Article for Discussion: Easterling Ready for Scrutiny after High School Sex Arrest http://www.usatoday.com/sports/college/football/cusa/2007-07-26-easterlingscrutiny_N.htm?csp=34 By Tim Doherty The (Jackson, Miss.) Clarion-Ledger Antwain Easterling understands he will draw immediate attention, not only for what he might do with a football in his hands this fall for Southern Miss, but also for the circumstances that in large part led him to Hattiesburg. While he says he regrets the act that caused some to shun a player most considered one of the top running back prospects in the nation, Easterling also said he is ready for the scrutiny. "I can carry it," Easterling said recently. "I've been through it. Down in Miami, (Class) 6A football, there's not much bigger publicity, so I've been through it and been through the rough times. … I made a mistake, and I regret it." Few stars were as bright in Dade County as the 5-11, 185-pound Easterling. He rushed for 2,831 yards and 33 touchdowns last season and was rated by national recruiting services among the top backs in the country. But Dec. 7, just days before his Miami Northwestern team was to play in the state championship game, Easterling was arrested and charged with second-degree lewd and lascivious battery on a minor, a felony charge stemming from having consensual sex with a 14-year-old girl at his high school three months earlier when he was 18. A few days after his arrest, Easterling was back on the field, rushing for 157 yards and a touchdown in a victory. That decision stirred harsh criticism in south Florida. Northwestern principal Dwight Bernard was indicted June 6 by a Miami-Dade grand jury for failing to report the incident with the girl to authorities. This month, Miami-Dade County Schools Superintendent Rudy Crew threatened to cancel the school's 2007 season because of cover-up allegations. Instead, coach Roland Smith and his staff were removed; the school has hired a new coach and will play this fall. In addition, athletics director Gregory Killings resigned. Crew could not be reached Thursday. For Easterling, the road to Hattiesburg began Jan. 8 when he was allowed to enroll in a pretrial diversionary program, 26 weeks of counseling sessions that would allow him to avoid prosecution and, upon its completion, have the charge dismissed, said Terry Chavez, Hispanic media relations officer with the Miami-Dade State Attorney's Office. Schools that had been recruiting Easterling, including Miami and Florida, backed off. After a brief courtship, USM signed one of its most highly-rated recruits. "We hit a home run when we landed Antwain," recruiting coordinator Ronnie Sanders said. "Did the kid have an issue which gave us a chance to land him? Sure he did. But I think it just depends on the individual who you're recruiting." Southern Miss coach Jeff Bower said he and his staff checked Easterling's background before offering a scholarship. "You don't condone anything like that," said Bower, who probably will face more questions at Conference USA media days next week in New Orleans. "But it wasn't an issue that was serious enough not to sign him, and I know a lot of people wouldn't agree with me about that." Discussion Questions: 1. Do you think that the University of Miami and the University of Florida should have refused to recruit Easterling? 2. Do you think the University of Mississippi should have recruited Easterling? 3. Should a person’s status in society affect his or her treatment by the authorities, whether it be in sports or in the legal system? What about a person’s contribution to society? Should that have an effect? Should a homeless person be treated the same as a doctor? 4. Do you think society’s treatment of people according to their status is different than the law’s treatment of people according to their status? ACTIVITY 1: Background Information: The Kobe Bryant sexual assault case began in the summer of 2003 when the news media reported that the sheriff's office in Eagle, Colorado had arrested NBA superstar Kobe Bryant in connection with an investigation of a sexual assault complaint filed by 19-year old hotel employee Katelyn Faber. Bryant had checked into The Lodge and Spa at Cordillera hotel in Cordillera, Colorado on June 30 in advance of having surgery near there on July 2. Faber’s Side: In her initial interview with police on July 2, Faber claimed Bryant raped her from behind over a love chair in his hotel room at approximately 11 pm on July 1. She said she arrived late to her job at the hotel because of car problems. While in Bryant’s room after giving him a tour of the hotel, she said she became “uncomfortable” because he was being flirtatious. She said she got up to leave and that Bryant asked her for a hug. Then she said he French Kissed her when she looked up at him. She later said both the hug and kiss were consensual, but she never wanted to have sex with Bryant. Faber stated the kiss lasted 5 minutes, after which Bryant attempted to rape her, placing one hand on her neck and slightly choking her. After asking Faber a lewd question, Bryant halted his advances, and Faber claimed she was able to break free and leave. Bryant’s Side: Bryant admitted to an adulterous sexual encounter with his accuser, but denied the assault allegation. After he was formally charged on July 18, Bryant held a news conference in which he adamantly denied having raped Faber. With his wife on his side, he confessed, in tears, to having an adulterous sexual encounter with her, but insisted that everything that happened between the two had been consensual. Evidence/Background Materials: There were remnants of another man on Faber’s underpants when she went to her rape examination. Faber claims she grabbed dirty laundry by mistake, yet Bryant claims it is a testament to her lack of credibility. The doctor found vaginal trauma during Faber’s doctor exam. The doctor claims that it could have been caused by having sexual intercourse with multiple partners in two days, or by rape. Faber told investigators three times that she washed her face in Bryant’s room before she left; however, Faber later claimed she never washed her face. Trina McKay, the resort's night auditor, said Faber did not look upset when she came back from Bryant's room, and didn’t believe Faber was telling the truth. Other people testified that Faber arrived at a party and bragged about the incident. The police recovered a T-shirt that Bryant wore the night of the incident, which had three small stains of the accuser's blood on it. The stains were invisible to the naked eye on the white T-shirt. The smudge was verified to be Faber's blood by DNA testing. Bobby Pietrack, Faber's high school friend and a bellman at the resort, said she appeared to be very upset, and "told me that Kobe Bryant had forced sex with her." A few weeks before the trial was scheduled to begin, Faber wrote a letter apologizing for intentional misstatements and clarifying “mix-ups” she made when first interviewed by Colorado police. She wrote that she wanted to make the corrections because she was worried that Detective Doug Winters, the lead investigator in the case, did not believe her story. Faber wrote she lied when she told investigators that Bryant forced her to wash her face in his room before she was allowed to leave, stating she never washed her face in his room and instead wrote that she used a mirror near the hotel elevator to clean up her face. She said this was the only thing she “exaggerated.” She also admitted to lying about having car troubles the day of the incident. Faber was taking an anti-psychotic drug for the treatment of schizophrenia at the time of the incident. Before the alleged incident, Faber, an aspiring singer, tried out for the television show American Idol. Role Play Directions: Split the class into three groups. One group will represent Faber, one will represent Bryant, and the third will represent judges. Host a mock trial using the evidence and the law provided. ACTIVITY 2: What Actually Happened: The case was dropped after Faber refused to testify in the trial, and a civil suit was settled out of court. Affect on NBA: The case's pre-trial hearings went on through the 2003–2004 NBA season, a number of times causing Bryant to attend court in Colorado during the day, then immediately fly to another part of the country to play in the Lakers' game that night. Bryant generally performed well in such games, though the on-going proceedings and the media attention on them served as a continuing distraction, both to Bryant personally, and to the Laker team as a whole. Reference: http://en.wikipedia.org/wiki/Kobe_Bryant_sexual_assault_case Discussion Questions Regarding the NBA: 1. What would you do if you were the Coach of the Lakers from the time of the arrest throughout the litigation? Would you let Kobe Bryant continue to play? 2. Suppose Bryant’s contract was ending during the pre-trial phase, as the coach of the Lakers would you renew it? 3. Suppose you were Nike, and you had recently signed an endorsement deal with Bryant. Would you continue to allow Kobe to endorse your products during the pre-trial hearing phase? 4. Suppose Kobe’s is a nominee for MVP of the NBA. As the NBA, would you give him the award while this incident is still in controversy? 5. Re-examine the notion of “innocent until proven guilty.” Do you still have the same beliefs after the lesson? Why or why not? LEGAL RESOURCES: Common Law – Elements of Rape: - Force and Forcible Compulsion - Resistance - Consent Model Penal Code, Article 213: - § 213.0. Definitions o In this Article, unless a different meaning plainly is required: o (1) the definitions given in Section 210.0 apply; o (2) "Sexual intercourse" includes intercourse per os or per anum, with some penetration however slight; emission is not required; - § 213.1. Rape and Related Offenses. - (1) Rape. A male who has sexual intercourse with a female not his wife is guilty - of rape if: o (a) he compels her to submit by force or by threat of imminent death, serious bodily injury, extreme pain or kidnapping, to be inflicted on anyone; or o (b) he has substantially impaired her power to appraise or control her conduct by administering or employing without her knowledge drugs, intoxicants or other means for the purpose of preventing resistance; or o (c) the female is unconscious; or o (d) the female is less than 10 years old. o Rape is a felony of the second degree unless (i) in the course thereof the actor inflicts serious bodily injury upon anyone, or (ii) the victim was not a voluntary social companion of the actor upon the occasion of the crime and had not previously permitted him sexual liberties, in which cases the offense is a felony of the first degree. - (2) Gross Sexual Imposition. A male who has sexual intercourse with a female not his wife commits a felony of the third degree if: o (a) he compels her to submit by any threat that would prevent resistance by a woman of ordinary resolution; or o (b) he knows that she suffers from a mental disease or defect which renders her incapable of appraising the nature of her conduct; or o (c) he knows that she is unaware that a sexual act is being committed upon her or that she submits because she mistakenly supposes that he is her husband Florida Sexual Battery Statute - 794.011. Sexual battery- (a) “Consent” means intelligent, knowing, and voluntary consent and does not include coerced submission. “Consent” shall not be deemed or construed to mean the failure by the alleged victim to offer physical resistance to the offender. - (d) “Offender” means a person accused of a sexual offense in violation of a provision of this chapter. - (g) “Serious personal injury” means great bodily harm or pain, permanent disability, or permanent disfigurement. - (h) “Sexual battery” means oral, anal, or vaginal penetration by, or union with, the sexual organ of another or the anal or vaginal penetration of another by any other object; however, sexual battery does not include an act done for a bona fide medical purpose. - (2)(a) A person 18 years of age or older who commits sexual battery upon, or in an attempt to commit sexual battery injures the sexual organs of, a person less than 12 years of age commits a capital felony, punishable as provided in ss. 775.082 and 921.141. - (3) A person who commits sexual battery upon a person 12 years of age or older, without that person's consent, and in the process thereof uses or threatens to use a deadly weapon or uses actual physical force likely to cause serious personal injury commits a life felony, punishable as provided in s. 775.082, s. 775.083, s. 775.084, or s. 794.0115. - (4) A person who commits sexual battery upon a person 12 years of age or older without that person's consent, under any of the following circumstances, commits a felony of the first degree, punishable as provided in s. 775.082, s. 775.083, s. 775.084, or s. 794.0115: (a) When the victim is physically helpless to resist. (b) When the offender coerces the victim to submit by threatening to use force or violence likely to cause serious personal injury on the victim, and the victim reasonably believes that the offender has the present ability to execute the threat. (c) When the offender coerces the victim to submit by threatening to retaliate against the victim, or any other person, and the victim reasonably believes that the offender has the ability to execute the threat in the future. - (5) A person who commits sexual battery upon a person 12 years of age or older, without that person's consent, and in the process thereof does not use physical force and violence likely to cause serious personal injury commits a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, s. 775.084, or s. 794.0115. - (6) The offense described in subsection (5) is included in any sexual battery offense charged under subsection (3) or subsection (4). -(8) regard to the willingness or consent of the victim, which is not a defense to prosecution under this subsection, a person who is in a position of familial or custodial authority to a person less than 18 years of age and who: (a) Solicits that person to engage in any act which would constitute sexual battery under paragraph (1)(h) commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. (b) Engages in any act with that person while the person is 12 years of age or older but less than 18 years of age which constitutes sexual battery under paragraph (1)(h) commits a felony of the first degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. (c) Engages in any act with that person while the person is less than 12 years of age which constitutes sexual battery under paragraph (1)(h), or in an attempt to commit sexual battery injures the sexual organs of such person commits a capital or life felony, punishable pursuant to subsection (2). - (9) For prosecution under paragraph (4)(g), acquiescence to a person reasonably believed by the victim to be in a position of authority or control does not constitute consent, and it is not a defense that the perpetrator was not actually in a position of control or authority if the circumstances were such as to lead the victim to reasonably believe that the person was in such a position. (10) Any person who falsely accuses any person listed in paragraph (4)(g) or other person in a position of control or authority as an agent or employee of government of violating paragraph (4)(g) is guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084 Florida Sexual Battery Statute: 794.021. Ignorance or belief as to victim's age no defense o When, in this chapter, the criminality of conduct depends upon the victim's being below a certain specified age, ignorance of the age is no defense. Neither shall misrepresentation of age by such person nor a bona fide belief that such person is over the specified age be a defense. 794.022. Rules of evidence o (1) The testimony of the victim need not be corroborated in a prosecution under s. 794.011. o (2) Specific instances of prior consensual sexual activity between the victim and any person other than the offender shall not be admitted into evidence in a prosecution under s. 794.011. However, such evidence may be admitted if it is first established to the court in a proceeding in camera that such evidence may prove that the defendant was not the source of the semen, pregnancy, injury, or disease; or, when consent by the victim is at issue, such evidence may be admitted if it is first established to the court in a proceeding in camera that such evidence tends to establish a pattern of conduct or behavior on the part of the victim which is so similar to the conduct or behavior in the case that it is relevant to the issue of consent. o (3) Notwithstanding any other provision of law, reputation evidence relating to a victim's prior sexual conduct or evidence presented for the purpose of showing that manner of dress of the victim at the time of the offense incited the sexual battery shall not be admitted into evidence in a prosecution under s. 794.011. o (4) When consent of the victim is a defense to prosecution under s. 794.011, evidence of the victim's mental incapacity or defect is admissible to prove that the consent was not intelligent, knowing, or voluntary; and the court shall instruct the jury accordingly. Case Law Defining Sexual Offenses: - State v. Alston, 310 N.C. 399, 312 S.E.2d 470, 1984 N.C. LEXIS 1585 (1984) Physical resistance is not necessary to prove lack of consent, but there were no threats of serious bodily harm that reasonably could have induced fear. In addition, there was no evidence of intimidation. - Rusk v. State, 289 Md. 230; 424 A.2d 720; 1981 Md. LEXIS 165 o The court found that, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements rape in the second degree beyond a reasonable doubt. The reasonableness of the victim's fear was a question for the jury to resolve. A rationale jury could have found that the victim was in fear and so did not consent to the intercourse and that defendant's conduct was reasonably calculated to induce fear in the victim such that there was force. The court based their reasoning on the fact that they did not see any resistance or fear from the victim. Commonwealth v. Berkowitz, 415 Pa. Super. 505, 609 A.2d 1338 (Super. Ct. 1992) o The court held that rape is defined as forcible compulsion, not nonconsentable intercourse, and forcible compulsion depends on the totality of the circumstances. The court defines forcible compulsion as, to include not only physical force or violence but also moral psychological or intellectual force used to compel a person to engage in sexual intercourse against the person’s will. In previous cases, the plaintiff had to show that he/she resisted. However, this case altered the burden of proof, causing the defendant to prove that there was reasonable mistake of consent. In this case, the court said that there is not enough evidence for rape. There was no threat, duress, or intimidation. - In re John Z, 29 Cal. 4th 756, 60 P. 3d 183, 128 Cal. Rptr. 2d 783 (2003) o The Court held that (1) a withdrawal of consent by the victim effectively nullified any earlier consent and subjected the male to forcible rape charges when he persisted in what had become nonconsensual intercourse; (2) the offense of forcible rape occurred when, during apparently consensual intercourse, the victim expressed an objection and attempted to stop the act, and the defendant forcibly continued despite the objection; and (3) the evidence was sufficient to show that the victim withdrew her consent, communicated that fact to defendant, and defendant used force to resist the victim's attempt to stop the act, in violation of Cal. Penal Code § 261(a)(2).
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