Based on the facts presented, the factual issues that are to be discussed are based on several acts that can be determined as felonious. These are the following: first, the unlawful entry of Dr. Adam Oldguy; second, the unlawful taking of the 50 dollars in the bedroom; third the attempt to sexually assault Vicky, the victim; fourth, the killing of Vicky; and last, the assault on Bob, the boyfriend of the deceased. Each of these issues shall be discussed in detail below.
The possible crimes shall also be discussed until a determination of the proper crime to be filed is determined. The facts pertaining to this issue are as follows: Adam said, “I’ll show you how it’s done”. He then angrily told Vicky to take off her clothes. Without saying another word, Adam tied Vicky’s hands behind her back with a scarf and pushed her onto the bed he then proceeded to touch her private parts. As a doctor of gynecology Adam told Vicky that his exam showed that she is a poor example of womanhood and then Vicky began to cry.
Adam then got off the bed, untied her hands and said that he was too good for her. Section 13-1406 of the Arizona Revised Statutes, provides that “a person commits sexual assault by intentionally or knowingly engaging in sexual intercourse or oral sexual contact with any person without consent of such person. ” However, for an act of sexual intercourse to be considered as sexual assault, the essential elements must be met. The case of State vs. Alston discusses the essential requisites of sexual assault.
According to the above mentioned case, an act of sexual intercourse shall constitute rape or sexual assault if it is consummated through force or threat of force, against the will of the victim. In other words, for a person to be convicted of rape or sexual assault, the concurrence of 3 elements must be present. First, there must be an act of sexual intercourse; second, it was consummated through force or threat of force and; last, it was done against the will of the victim. The first element requires that sexual intercourse be committed.
In order for an accused to be convicted of sexual assault, it must first be determined that there was an act of sexual intercourse. In the crime of sexual assault, from the moment the offender has carnal knowledge of his victim, he actually attains his purpose and, from that moment also, all the essential elements of the offense have been accomplished. Nothing more is to be done by the offender, because he has performed the last act necessary to produce the crime. Thus, the felony is consummated.
In a long line of cases, a uniform rule has been set that for the consummation of sexual assault, perfect penetration is not essential. Any penetration of the female organ by the male organ is sufficient. Entry of the labia or lips of the female organ, without rupture of the hymen or laceration of the vagina, is sufficient to warrant conviction. Necessarily, sexual assault is attempted if there is no penetration of the female organ because not all the acts of execution were performed. The offender merely commenced the commission of a felony directly by overt acts (Leonard, 1993)
The second element provides that it must be consummated through force or threat of force. It is not necessary that the force employed against the complaining woman in rape be so great or of such character as could not be resisted. It is enough that the force used is sufficient to consummate the culprit’s purpose of copulating with the offended woman. The force or violence necessary in rape is naturally a relative term, depending on the age, size, and strength of the parties and their relation to each other (Leonard, 1993).
The third element requires that the sexual intercourse was consummated against the will of the offended party. This is also commonly known as the resistance requirement. This is important because in traditional law, there is such an animal as force with consent which will not qualify the act as sexual assault because of the lack of one essential element namely the third element of lack of consent (lawschool. mikeshecket. com). While some courts suggest that resistance forms part of force, other courts interpret the phrase “against the will” as a form of positive resistance against the force employed against her.
There must be a positive act coming from the offended party, in the form of words or actions, that should suggest her disapproval of the intentions of the offender (lawschool. mikeshecket. com). Based on the elements, the crime to be charged for this act cannot be sexual assault because of the lack of the presence of the first (sexual intercourse) and the last (without consent) elements. As mentioned above, for the crime of rape to be consummated, it is not essential that there be a complete penetration of the female organ. It is enough that the labia or the lips of the female organ were penetrated.
In fact, the slightest penetration of the labia constitutes sexual intercourse. This, however, only applies to the penetration, no matter how slight, of the male organ. It does not apply to hands or fingers. In the case at bar, Dr. Oldman did not have sexual intercourse with Vicky Newname. He merely “examined” her organ by touching it with his hands and then desisted on his own. The lack of sexual intercourse can be seen when he got off the bed, untied her, and said “I’m too good for you”. This suggests that he did not think that she was worthy of having sexual relations with after she failed her “examination”.
The third element of without consent was also absent. As mentioned above, there must be some form of positive act to show resistance. The presence of resistance is the best evidence of the lack of consent to enter into sexual relations. In this case, even if she was forced to undress, she did it without any moment’s hesitation. The fact that she undressed herself without any struggle, or without saying anything, indicates some form of assent to it. In fact, Dr. Oldguy just told her to undress in an angry manner without any other form of threat.
Furthermore, even if she was tied up, only her hands were tied up. Her mouth was not covered and yet she said nothing to discourage or prevent him from doing anything. She did not even scream for help. She only cried after Dr. Oldguy told her that she was a poor example of womanhood. These circumstances suggest that even if force was employed, she did not do anything to resist it. The only element present in the facts of the case at bar is the element of force. As mentioned above, Vicky was tied up after she was instructed in an angry manner to undress.
This however is not enough to constitute a crime of sexual assault. Neither can he be charged with sexual abuse under Section 13-1404 of the Arizona Revised Statutes which provides that “a person commits sexual abuse by intentionally or knowingly engaging in sexual contact with any person fifteen or more years of age without consent of that person or with any person who is under fifteen years of age if the sexual contact involves only the female breast” because, like sexual assault, without consent is an essential element of the crime.