Cultic Studies Journal, Vol. 15, No. 1, 1998, page 6
But to establish lack of consent for rape against adults, prosecutors generally must show an
element of “force” or “threat of force.”27 Physical force may not need to be proven even in
rape cases where there are unusual circumstances such as a restrained adult victim in a
stretcher.28
If force against an adult victim cannot be demonstrated, and if the victim is not physically
restrained, then states‟ laws require a showing of some form of incapacity to consent. New
York‟s rape statute requires a general showing of the victim‟s “incapacity to consent,” such
as when the victim is (1) “mentally defective,” or (2) “mentally incapacitated” or (3)
“physically helpless.”29 Whereas, Louisiana‟s statute provides slightly broader grounds for
incapacity: when (1) the victim is under the effects of “an intoxicating agent,” or (2) when
the victim is “incapable, through unsoundness of mind, whether temporary or permanent, of
understanding the nature of the act and the offender knew or should have known of the
victim‟s incapacity.”30
But courts narrowly construe incapacity to consent. Courts appear to rely predominately on
force rather than the victim‟s inability to give consent. In New Jersey‟s State v. Scherzer31,
the court looked toward a showing of physical force. In the widely publicized Scherzer case,
eight high school-aged males were tried on various sexual assault charges they allegedly
committed against a mentally “slow” high school-aged female. According to the testimony
of the victim, and consistent with that of the defendants, sexual activity occurred among the
victim and the defendants, under the urging of the boys, whereby the victim masturbated
and performed fellatio on five of the young men, and the young men inserted various
objects into her vagina including a broomstick and a handle of a baseball bat, and they
sucked on her breasts.32 One of the boys testified that they persuaded her to perform for
them as they sat in chairs surrounding her “like a tank of piranhas.”33 Based upon the boys‟
knowledge of the victim‟s “intellectual limitations,” and their persuasion that she engage in
sexual activity with them, the court held that the evidence was sufficient to support a
conviction for conspiracy to commit an aggravated sexual assault.34
Remarkably, on a separate charge for aggravated sexual assault, the New Jersey court held
that there was not enough evidence to prove that “force or coercion” was used. Despite the
testimony that numerous boys encouraged the mentally vulnerable girl, and that the boys
participated in the sexual acts, nevertheless, the court enunciated a narrow rule:
“persuasion is not coercion ...merely because the victim is mentally defective.”35 Upon
examining the facts, the court found, “there [was no] indication that [she] was in any way
intimidated by the size or number of the boys present.”36 The court did not find it
convincing that “force or coercion” was used when considering that one of the boys led the
victim to the basement where the crime occurred by holding his arm around her in a
“romantic fashion.”37 Furthermore, the court must not have found it persuasive that the
witnesses characterized the victim as one who tried desperately to please her peers, even
those who were abusive toward her.38
The rationale of the New Jersey decision is consistent with the Minnesota decision of State
v. Meech, a case similar to Scherzer in that the victim was mentally “slow” and subjected to
sexual abuse, but the outcome in Meech39 is different. The Minnesota court held that force
or coercion in the crime of rape was demonstrated by the perpetrator having pushed up her
nightgown, held down her hands, and told her to shut up. According to the Minnesota
court, she was “fearful and overpowered by his words and actions.”40 Thus, courts are
persuaded by a demonstration of defendant‟s physical force, as in Meech, as opposed to
coaxing and engaging behavior, as in Scherzer. The courts‟ emphasis on a showing of
physical force presents difficulties for prosecutors to prove rape of cult members, when
physical force was not present.
But to establish lack of consent for rape against adults, prosecutors generally must show an
element of “force” or “threat of force.”27 Physical force may not need to be proven even in
rape cases where there are unusual circumstances such as a restrained adult victim in a
stretcher.28
If force against an adult victim cannot be demonstrated, and if the victim is not physically
restrained, then states‟ laws require a showing of some form of incapacity to consent. New
York‟s rape statute requires a general showing of the victim‟s “incapacity to consent,” such
as when the victim is (1) “mentally defective,” or (2) “mentally incapacitated” or (3)
“physically helpless.”29 Whereas, Louisiana‟s statute provides slightly broader grounds for
incapacity: when (1) the victim is under the effects of “an intoxicating agent,” or (2) when
the victim is “incapable, through unsoundness of mind, whether temporary or permanent, of
understanding the nature of the act and the offender knew or should have known of the
victim‟s incapacity.”30
But courts narrowly construe incapacity to consent. Courts appear to rely predominately on
force rather than the victim‟s inability to give consent. In New Jersey‟s State v. Scherzer31,
the court looked toward a showing of physical force. In the widely publicized Scherzer case,
eight high school-aged males were tried on various sexual assault charges they allegedly
committed against a mentally “slow” high school-aged female. According to the testimony
of the victim, and consistent with that of the defendants, sexual activity occurred among the
victim and the defendants, under the urging of the boys, whereby the victim masturbated
and performed fellatio on five of the young men, and the young men inserted various
objects into her vagina including a broomstick and a handle of a baseball bat, and they
sucked on her breasts.32 One of the boys testified that they persuaded her to perform for
them as they sat in chairs surrounding her “like a tank of piranhas.”33 Based upon the boys‟
knowledge of the victim‟s “intellectual limitations,” and their persuasion that she engage in
sexual activity with them, the court held that the evidence was sufficient to support a
conviction for conspiracy to commit an aggravated sexual assault.34
Remarkably, on a separate charge for aggravated sexual assault, the New Jersey court held
that there was not enough evidence to prove that “force or coercion” was used. Despite the
testimony that numerous boys encouraged the mentally vulnerable girl, and that the boys
participated in the sexual acts, nevertheless, the court enunciated a narrow rule:
“persuasion is not coercion ...merely because the victim is mentally defective.”35 Upon
examining the facts, the court found, “there [was no] indication that [she] was in any way
intimidated by the size or number of the boys present.”36 The court did not find it
convincing that “force or coercion” was used when considering that one of the boys led the
victim to the basement where the crime occurred by holding his arm around her in a
“romantic fashion.”37 Furthermore, the court must not have found it persuasive that the
witnesses characterized the victim as one who tried desperately to please her peers, even
those who were abusive toward her.38
The rationale of the New Jersey decision is consistent with the Minnesota decision of State
v. Meech, a case similar to Scherzer in that the victim was mentally “slow” and subjected to
sexual abuse, but the outcome in Meech39 is different. The Minnesota court held that force
or coercion in the crime of rape was demonstrated by the perpetrator having pushed up her
nightgown, held down her hands, and told her to shut up. According to the Minnesota
court, she was “fearful and overpowered by his words and actions.”40 Thus, courts are
persuaded by a demonstration of defendant‟s physical force, as in Meech, as opposed to
coaxing and engaging behavior, as in Scherzer. The courts‟ emphasis on a showing of
physical force presents difficulties for prosecutors to prove rape of cult members, when
physical force was not present.
