State v. Smith

210 Conn. 132, 554 A.2d 713 (1989)



Connecticut's first degree sexual assault statute, Conn. Gen. Stat. Ann. § 53a-70, applies to a person who compels another person to engage in sexual intercourse by the use of force or by the threat of use of force which reasonably causes such person to fear physical injury. Although the consent of the complainant is not expressly made a defense to such a crime, it is abundantly clear that the draftsmen of the penal code endorsed the principle that non-commercial sexual activity in private, whether heterosexual or homosexual, between consenting, competent adults, not involving corruption of the young by older persons, is no business of the criminal law. A finding that a complainant had consented would implicitly negate a claim that the actor had compelled the complainant by force or threat to engage in sexual intercourse. Consent is not made an affirmative defense under the sex offense statutes, so, as in the case of the defense of alibi, the burden is upon the State to prove lack of consent beyond a reasonable doubt whenever the issue is raised.


Defendant invited a woman back to his apartment and made advances to her. Though the woman repeatedly rejected his advances, defendant persisted. The woman testified that she believed defendant was determined to have sex with her and that he would hurt her if she did not go along with it. She reported the assault immediately. Defendant was convicted of sexual assault in the first degree in violation of Conn. Gen. Stat. Ann. § 53a-70. On review, defendant claimed several errors including that the trial court should have granted his motion for acquittal due to insufficiency of the evidence on the element of lack of consent. Defendant argued that he did not realize that the woman was not consenting, and that such subjective intent on his part was an element of the crime. The court disagreed and affirmed defendant's conviction.


Was there sufficient evidence to show that the victim did not consent to sexual activity with the defendant?




According to the court, the jury could properly have found beyond a reasonable doubt that the woman's words and actions could not reasonably be viewed to indicate her consent to intercourse. The court held that the inquiry on the issue of consent was not the subjective state of mind of defendant or the victim, but rather the victim's manifestations of lack of consent by words or conduct.

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