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Lack of consent for purposes of third-degree sodomy is defined as circumstances under which, at the time of the sexual act, the victim clearly expressed that he or she did not consent to engage in such act, and a reasonable person in the actor's situation would have understood such person's words and acts as an expression of lack of consent to such act under all the circumstances. Penal Law § 130.05(2)(d). This provision was designed to address the so-called date rape or acquaintance rape situations where there might be consent to various acts leading up to the sexual act, but at the time of the act, the victim clearly says no or otherwise expresses a lack of consent, and a reasonable person in the actor's situation would understand that the victim was expressing a lack of consent. Further, the use of the term "reasonable person" in the "actor's situation" imports an objective element into the determination of whether there was a clear expression of non-consent to the sexual act. Although the "reasonable person" must stand in the shoes of the actor, if such a person would understand that the victim was expressing a lack of consent, then it does not matter that the accused thought otherwise.
Defendant James W. Newton, Jr. was indicted for the crimes of sodomy in the first degree, sexual abuse in the first degree, and sodomy in the third degree. The three-count indictment accused defendant of engaging in oral sex with a 19-year old male by forcible compulsion and without consent. Defendant contended that the alleged victim did not resist or otherwise communicate a lack of consent, and that he perceived the sexual act to be consensual. In addition, it was undisputed that defendant had been consuming beer steadily in the hours before the incident. At trial, the defense counsel asked the court to instruct the jury on intoxication with respect to both sodomy counts. Instead, the trial court instructed the jury that intoxication was not a defense under any circumstances because there was no element of intent or other subjective mental state required for the crime. The jury ultimately acquitted defendant of sodomy in the first degree, and convicted him of sodomy in the third degree. On appeal, defendant argued that the trial court should have instructed the jury to consider his intoxication in connection with the sodomy charge.
Should the trial court have instructed the jury to consider defendant’s intoxication in connection with the sodomy charge?
The court of appeals found that because defendant's subjective mental state was not an element of the crime of third-degree sodomy under Penal Law § 130.40(3), evidence of his intoxication at the time of the sexual act was irrelevant. Therefore, the trial judge properly declined to instruct the jury on intoxication under Penal Law § 15.25 with respect to the charge. Accordingly, the judgment was affirmed.