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Example of Memorandum of Law

Example of Legal Memorandum of Law. Follow the example to create a flawless memorandum.

You have asked me to prepare a legal memorandum on the question of whether the defendant “raped” the complainant, and whether the complainant was “physically helpless”. As requested this memo contains an analysis of the state penal code pertaining to the issues of the case.

Under the state penal code was the complainant considered “physically helpless”?

Under the state penal code was the complainant “raped”?

No. Under the NY state penal code “physically helpless” is defined as, a person who is unconscious or for any other reason is physically unable to communicate unwillingness to an act. In this case the complainant was fully aware of her situation. She was in no way unable to express her objection to the sexual act she took part in.

No. Under the state penal code for first degree rape, “rape” has two elements that must be present: the case must involve sex and it must also involve force, either physical or verbal, or actual or implied. Forcible compulsion under the New York State Penal Code § 130.00 means physical force or a threat, express or implied, which force or threat places a person in fear of immediate death or serious physical injury to himself, herself or another person, or in fear that he or she or another person will immediately be kidnapped. This case does include the first element, however the sex was consented by both parties. While there may have been an empty promise of marriage, there was no actual force involved.

A cognitively disabled female, age 18 years old, and a boy, also of legal age, engaged in sexual intercourse. The boy had told the girl that if she had sex with him that he was going to marry her. However, after the intercourse took place, the boy dumped the girl.

Rule of Law: Under the New York Penal Code § 130.00 Sex offenses, "Physically helpless" means that a person is unconscious or for any other reason is physically unable to communicate unwillingness to an act.

Case Law:

1. Case 1. People v. Williams- interpreting the term “physically helpless” as pertaining to cases of rape.

a. Facts: The complainant had retired to her bed after a night of using marijuana and drinking alcohol. She then became aware of someone’s tongue in her mouth, facial hair rubbing against her cheek, a “beer belly” pressed against her stomach, and a penis in her vagina, and that she identified defendant by his voice and his “beer belly”.

b. Rule: A person who is sleeping is “physically helpless” for the purpose of consenting to sexual intercourse, particularly where the sleep was drug and alcohol induced.

The term “physically helpless” does not apply to our complainant. She was neither unable nor incapable of resisting intercourse with the defendant. In the case of People v. Williams, the complainant was incoherent at the time of said rape. From the impact of the alcohol and marijuana, she was relatively unconscious and actually “physically helpless” by definition. This was not the case with our complainant; she was of sound mind when she consented to the intercourse.

Though it could be argued that due to mental capacity, our complainant was unable to properly judge the situation, she never the less verbally and physically consented to the intercourse, making her not “physically helpless” by definition.

2. Case 2. People v. Littebrant- interpreting the term “physically helpless” as pertaining to cases of rape.

a. Facts: The victim accompanied the defendant’s daughter on an extended visit to defendant’s residence, which consisted of a room within the home of a couple. The defendant procured alcohol for his daughter and the victim. The three began watching a movie, where the victim then began throwing up and urinating due to the alcohol. The defendant then got on top of victim, held her down, vaginally and then anally penetrated her. He left and then came back and did it again. The following day the victim informed her mother of the rape.

b. Rule: A person who is “physically helpless” must be physically unable to communicate unwillingness to an act.

In the case of People v. Littebrant, as well as in this case, the victims were not considered “physically helpless”. The victim in People v. Littebrant, though intoxicated, was not physically unable to communicate her unwillingness to proceed with the intercourse. It was due to the presence of force that Littebrant constitutes a rape case, not due to physical inability.

Though it could be argued that our complainant was not intoxicated, making the case of People v. Littebrant irrelevant, the issue of “physically helpless” is neither relevant in either case. Both complainants were physically capable of expressing their unwillingness to engage in intercourse with their defendants, making the case People v. Littebrant relevant in the notion of what “physically helpless” really means.

Rule of Law: Under the New York State Penal Code § 130.35, first-degree rape constitutes that someone must be “physically helpless” or there must be forcible compulsion, which can include physical/verbal or actual/implied.

Case Law:

1. Case 1. People v. Ayers – interpreting forcible compulsion as pertaining to cases of rape.

a. Facts: When first approached by defendant, the complainant screamed and tried to pull away, but was knocked to the ground and kicked in the face. Thereafter, she was led to a secluded spot in the park where the sexual assault took place. She testified that the defendant was larger and stronger than she and that she was afraid of being severely hurt.

b. Rule: For a sexual act to be considered a rape, there must be sex involved as well as forcible compulsion.

In the case of People v. Ayers, forcible compulsion is clear-cut. The victim was struck and then forced, through fear for her own safety, to engage in sexual intercourse. In the case of our complainant, there was no physical, verbal, actual or implied threat. She was asked to have sex, she consented and then she engaged in sexual intercourse with the defendant.

Though it may be argued that the defendants’ promise could be construed as verbal force, it does not constitute a threat to her, or anyone else’s well-being, and therefore does not embody the definition of forcible compulsion.

2. Case 2. People v. Locke - interpreting forcible compulsion as pertaining to cases of rape.

a. Facts: Complainant was home alone with two infant children and approached in her bedroom at 4:30 am by two masked men who had broken through a locked front door and told her to cooperate for safety of herself and her children; the defendant then raped her.

b. Rule: Forcible compulsion under the New York State Penal Code § 130.00 means physical force or a threat, express or implied, which force or threat places a person in fear of immediate death or serious physical injury to himself, herself or another person, or in fear that he or she or another person will immediately be kidnapped.

In the case of People v. Locke the jury determined that while there was no proof that complainant was physically harmed in course of rape, other than by act of intercourse itself, there was ample evidence to sustain a finding that complainant’s earnest resistance to threat of rape was overcome by threatening statements of defendant that placed her in fear of serious physical injury to herself and her children. Our complainant was not threatened or in fear for her safety or the safety of anyone else, therefore forcible compulsion is not an element in this case.

Though it may be argued that our complainant was mislead, she was not forced in any sense of the Penal Code’s definition, and in order for something to constitute a rape, forcible compulsion must be an element.

Based on the New York State Penal Code on “rape” and “physical helplessness”, and the evidence provided by the relevant cases, it is clear that our complainant was neither “raped” nor “physically helpless”.

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