[DV_listserv] Another DV case--great for prosecution!

[Domestic Violence issues]

OREGON COURT OF APPEALS
CONVICTION FOR FIRST-DEGREE RAPE AFFIRMED DESPITE VICTIM'S TESTIMONY THAT SHE
CONSENTED
State v. Jimenez, __ Or App __, __ P3d __ (February 1, 2012) (Multnomah) (AAG
Shannon Terry Reel). In a prolonged incident of domestic-violence, defendant repeatedly
physically abused and threatened the victim over the course of a day, accusing her of cheating on
him. At one point, he compelled her to perform oral sex. Later, according to the victim, he
began acting "much gentler" and asked her if she wanted to have sex, she agreed, and they
engaged in intercourse. Defendant was charged with a slew of crimes, including burglary,
kidnapping, robbery, assault, strangulation, and first-degree rape and sodomy. At trial, the
victim testified with respect to the rape charge that she "said yes" to defendant and "didn't feel
forced." Defendant moved for a judgment of acquittal on the rape charge, asserting that there
was insufficient evidence that he had "forcibly compelled" the victim to engage in intercourse.
The trial court denied the motion, and the Court of Appeals affirmed without opinion. After
State v. Marshall, 350 Or 208 (2011), the Supreme Court remanded the case for reconsideration.
Held: Affirmed (Ortega, J.) [1] "Forcible compulsion" includes physical force or "a
threat, express or implied." A threat must be communicated to the victim, and may be either
directly or distinctly stated, or conveyed by allusion or reference. [2] Although "disbelieving the
victim or discounting her testimony ... does not add anything affirmative to the state's evidence,
... the circumstances surrounding the sexual contact are such that a reasonable finder of fact
could conclude that defendant subjected the victim to a threat and that she submitted to the
sexual contact against her will as the result of that threat." [3] Viewed in the light most
favorable to the state, the evidence allowed a rational trier of fact to find that, despite the
victim's testimony, defendant had forcibly raped her: "Here, defendant engaged in an extended
episode of violence directed at the victim. He threatened her while his friend stood by wielding a
baseball bat. He repeatedly punched and kicked her and called her names. Defendant forced the
victim to drive him to her mother's house and, once they were there, took her money. After
leaving the house he threatened to break into the house with the help of friends, and, once he
returned to the house, he threw a drink on the victim, demanded oral sex and, when she did not
comply, forced her to do so. A rational factfinder could conclude that that extended course of
conduct constituted an implied threat which communicated, by natural inference, that defendant
would harm the victim if he was angry or if she did not comply with his demands. Furthermore,
given that defendant had hurt the victim in the past and given the severity of his conduct on the
day in question, a rational trier of fact could conclude that the threat communicated by
defendant's conduct was sufficient to, and in fact did, compel the victim to submit to sexual
intercourse with him against her will when he requested it."
http://www.publications.ojd.state.or.us/A142714.pdf

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