The Facts:
Defendant has been found guilty of assault in the second degree, with intent to rape. He is now before the court for sentencing.
A New York Sex Crimes Lawyer said that a “prior offense” Information has been filed by the District Attorney which alleges that the defendant is now a second felony offender by reason of the fact that he was previously convicted, after trial, in the Commonwealth of Pennsylvania, of three crimes, viz.: aggravated assault and battery, assault with intent to ravish and rape.
Defendant denies his status as a second felony offender. The questions of law raised by that denial are now before the court for determination upon an agreed statement of facts.
Defendant’s identity as the Pennsylvania convict is conceded but he contends that the prior acceptance by the same court of a plea of guilty to the crime of fornication makes it legally impossible for the crimes alleged in the information now before the court to be considered felonies if committed in New York and that, therefore, he is not legally a second felony offender. The fact that he was convicted, by the same court, upon his plea of guilty of the crime of fornication, based upon a single incident, involving the same woman is claimed to obliterate the effect of the convictions of the rape, and the assault with intent to commit it, as felonies, it being contended that the crimes of fornication vis-a-vis the crimes of rape and assault with intent to commit rape are mutually exclusive.
A New York Criminal Lawyer said the essence of the argument is that under Pennsylvania Law, adultery or fornication is consensual sexual intercourse, so that the yielding of consent was necessarily adjudicated by the Court when it accepted defendant’s guilty plea on the fornication charge and entered a judgment thereon. However, neither actual nor implicit consent appears within the framework of the operative facts of record (i. e., the allegations of the Pennsylvania indictments upon which the defendant was found guilty), and the defendant is limited to those facts.
The Issues:
Are defendant’s prior convictions considered felonies? Is defendant considered a second felony offender which could affect his sentencing?
The Ruling:
Here, nowhere in the record does it appear that defendant resisted trial on the crimes alleged in Bill Number 59 on the ground of his prior conviction of the fornication (also a constituent of the rape), and his failure to raise the question, seasonably, operated as a waiver of his right to immunity from any second jeopardy then or now thought to have been involved.
If the trial court in Pennsylvania committed error in finding the defendant guilty as charged on Bill No. 59, which is the conviction used by the District Attorney here as the prior felony, because his prior plea of guilty to the fornication indictment (Bill No. 60) was a bar to any further prosecution for the same incident, his remedy was to take a direct appeal from the judgment of conviction entered against him thereon. He may not seek, in the herein State, to destroy the legal effect of the conviction under that indictment by referring to the contents of another indictment. A Nassau Sex Crimes Lawyer said that so long as the judgment of conviction under Bill No. 59 stands of record in the State of Pennsylvania and was not rendered by a court which lacked jurisdiction of his person or of the offense charged against him, he may not in the herein State question its judgment.
In a similar case, the court said that since New York provides no method for questioning the validity of an out-of-state conviction that is used as a basis for a sentence under the New York multiple offender statute, the convict is entitled to a hearing in the federal court on the validity of the foreign conviction and a determination of whether it is a permissible basis for New York’s confining him longer than it otherwise would. However, in the opinion of the case, it is limited to those situations in which the out-of-state conviction is constitutionally void. The court held that: The alleged violation of constitutional right, thus, being New York’s, and New York having provided no method for questioning an out-state conviction used as basis for multiple-offender sentence, a New York prisoner challenging the validity of such a conviction on constitutional grounds may proceed directly in a Federal court.
Thus, in the absence of any constitutional infirmity in the Pennsylvania judgment of conviction, upon which the People here rely, the defendant must be sentenced as a second felony offender.
Moreover, even assuming that the plea of guilty to the fornication indictment (Bill No. 60), upon which a judgment of conviction was duly entered, may be considered together with the judgment of conviction entered on Bill No. 59 (the assault and rape indictment), in determining the defendant’s status as a second felony offender, the same result would follow.
Notably, adultery is defined by the Pennsylvania Statute as carnal connection with another person of the opposite sex, not his lawful spouse, upon the part of a married person. A Queens Sex Crimes Lawyer said a cooperative, unmarried participant cannot be guilty of the crime but is open to prosecution for fornication and, in the case of the male offender, for bastardy, upon conviction whereof he is subject to a sentence that he pay the expenses incurred at the birth of a child begotten by the act and that he give security for its maintenance. The statute proscribes fornication without defining it but the offense, in common acceptance, involves illicit carnal knowledge of a man with a woman, without elements of aggravation such as force constituting common law rape. Fornication is held to be necessarily involved in rape and the doctrines of merger and bar are applied so as to prevent double-punishment for the rape and the crimes (successive steps constituting ingredient offenses) involved in its commission. It forms the body of a number of crimes, differing in the circumstances attending their commission but originally connoted sexual intercourse for hire and, perforce, by mutual consent. Hence, as a general rule, it involves voluntary unlawful sexual intercourse between two persons of the opposite sex thereby importing the consent of both and it has, accordingly, been held that either both parties must be guilty of adultery or fornication or neither can be guilty thereof. But what is sometimes stated as a rule of universal application and is an accurate statement of the law when applied to most cases may not be applicable or correct in particular situations and the great weight of authority now holds that one of the parties may be guilty although the other, for want of true concurrence in the act, may be innocent of fornication or adultery as the case may be. While it is true that to constitute adultery there must be a joint physical act, it is not necessary that there should be a joint criminal intent. The bodies must concur in the act but the minds may not; one may be guilty and the other innocent.
Thus, although the woman is too drunk to consent, the man may be guilty of adultery. It is an act committed by him although she is not the criminal or conscious participant. And it is not less adultery that it is also rape.
The requirement that the intercourse be voluntary is to be applied to the party who commits the offense, and not the one with whom or against whom it is done so that if the carnal connection is accomplished forcibly, against the woman’s will still, as to defendant, it constitutes the crime of adultery, and the defendant may be convicted therefore. So too, if the woman concurs through ignorance fostered by the man’s deception as to his marital state, she is without the criminal intent essential to her guilt and the man alone will be guilty of fornication and adultery. The same principle has been applied to cases of incest, defined in terms of adultery or fornication with each other, or together, by parties within particular degrees of relationship.
Henceforth, adultery, as defined does not require that the act shall be voluntary as to each of the parties. Where both the circumstances of force and consanguinity are present, it is not less incest because the element of rape is added, and it is not less rape because perpetrated upon a relative.
Similarly, the court finds that the consent of the female is not necessary to constitute the crime of incest by the male. It is his intent and his act that the law punishes him for. The male may be convicted of incest even though he accomplished the act without the consent of the female and against her will.
In sum, the majority of the courts take the position, in effect, that although a person who has committed no crime in the eyes of the law cannot, of course, be characterized as an accomplice, the defendant’s guilt of adultery or fornication is determined by his conduct and the consequences thereof are not avoided by the innocence of his victim.
Here, the Pennsylvania courts apply the doctrine of constructive force when mental illness renders the woman incapable of giving rational consent and, perhaps, when she is unconscious through intoxication, drugs or sleep and (implicitly) do not consider the sexual act to have been consensual when the woman is surprised and victimized by a physician who has abused the confidence placed in him. Common law rape, of course, is the antithesis of consensual sexual intercourse. The Court’s interest in the law of Pennsylvania centers upon the fact that it has not yet been decided there, directly, that sexual assailants cannot be guilty of adultery or fornication, as the case may be, committed against the woman’s will or without her consent. Under those circumstances it does not appear that defendant’s conviction of fornication by way of his guilty plea is inconsistent with his conviction after trial of the rape and the assault with intent to commit it. There is, consequently, no difficulty in perceiving that the latter crimes would have been felonies if committed in New York and it follows that the District Attorney should be sustained in his effort to protect the women of the community by requesting the penalty that may serve to deter sexual aggression and thus avoid any temptation to the injured female or the male members of her family to take private vengeance.
In conclusion, the court finds that defendant is a second felony offender; the application of the defendant to dismiss is denied with exception.
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