I've read dozens of cases on sexual assault indictments and in some the manner and means of negating the consent of the victim is alleged, but in many it is not. There seems no clear cut rule on this.
Is it necessary to allege the way it was "without the consent of (the victim)" in a sexual assault indictment?
Seems a silly question, but my research finds cases all over the map on this. Anyone have a definitive answer?

Just off the hip -

Sexual assault requires "force or the threat of force", or incapacitation of one sort or another (age, etc.). I have never alleged, nor have I ever seen anyone allege, how consent was withheld. In light of the requirement of force or incapacitation, is further lack of consent required to be alleged? I don't think so. I don't think that, once force or incapacitation are proven that anything else need be proven. I don't think a man or a woman has to say NO when a gun is being used to threaten, or NO when they are getting their faces pummeled.

The elements of sex assault are (1) penetration (2) of the anus, sexual organ, or mouth (3) without consent. So you need to allege that it was without consent because that's an element of the offense. But you don't need to allege why there's no consent because that's an evidentiary fact. You would just prove up at trial that the person said no or one of the negation of consent factors under 22.011(b) apply, such as use or threat of force, being unconscious, etc.

The SBOT Criminal Pattern Jury Charges contain an interesting comment related to this element. See Crimes Against Persons at Sec.C8.6, page 194 (2011).

quote:

Originally posted by John A. Stride:
The SBOT Criminal Pattern Jury Charges contain an interesting comment related to this element. See Crimes Against Persons at Sec.C8.6, page 194 (2011).

Shameless plug alert.

The answer is NOT in the The Perfect Plea. Just sayin'.

quote:

Originally posted by John A. Stride:
The SBOT Criminal Pattern Jury Charges contain an interesting comment related to this element. See Crimes Against Persons at Sec.C8.6, page 194 (2011).

Love to. Now, let's see... oh, yeah: we handle criminal cases from the prison system so virtually nothing we do is contained in the Pattern Jury Charges. So we didn't buy them.
Care to enlighten me as to the collected wisdom (I say with trepidation) of the Board Certified practitioners, judges, profs, and other ivory tower scholars?

quote:

Originally posted by AndreaW:
The elements of sex assault are (1) penetration (2) of the anus, sexual organ, or mouth (3) without consent. So you need to allege that it was without consent because that's an element of the offense. But you don't need to allege why there's no consent because that's an evidentiary fact. You would just prove up at trial that the person said no or one of the negation of consent factors under 22.011(b) apply, such as use or threat of force, being unconscious, etc.

That's what I thought, since the Thomas decision in 1981 made it pretty clear that anything that's not the act of the Defendant is not required to be plead. It's all evidentiary. Yet... the courts still are all over the place.
*sigh* I wish they'd get their acts together and bring some clarity to the law, just like the U.S. Supreme Court. (Sarcasm mode is now turned off)