People v.

Pham
Notes
Chiropractor Chi Van Pham was convicted for sexual battery by fraud for
touching the intimate body parts of his patients while purporting to examine them.
Julie, Elsa, and Toan all came to him with the expectation of receiving medical
treatment for their various injuries. When they arrived at his office, they signed in and
had their vital signs checked, as would be expected in a medical setting. They
understood Pham would be touching and moving their bodies in various ways to
diagnose and treat their injuries. In fact, they all signed consent forms which
explained their treatments might be uncomfortable.
Issue
#1. Whether there is sufficient evidence to prove beyond a reasonable doubt that
Defendant abused his position as a chiropractor to inappropriately touch and
"examine" his three patients while purporting to examine them without genuine
intentions of doing his job.
Reasoning
Traditionally, the law has distinguished between two types of fraud in
analyzing the issue of consent in sex crime cases, fraud in the fact and fraud in the
inducement. Fraud in the fact occurs when the D obtains the victim's consent to
perform one act, but instead engages in another act.
The unconsciousness requirement does not require proof the victim was totally
and physically unconscious during the acts in question. It simply requires proof the D
tricked the victim into submitting to the touching on the pretext it served a
professional purpose. This can be accomplished even when the victim has agreed to
the act in question. So long as the victim was unaware of the "essential characteristics
of the act", which satisfies the unconsciousness requirement.
Holding
As with Julie and Elsa, we therefore conclude there is sufficient evidence from
which the jury could find that Toan was unconscious of Pham's sexual intentions at
the time he treated her. And because, as explained above, the evidence also shows the
victims' unconsciousness was attributable to Pham's fraudulent representations-both
implied and actual- we have no occasion to disturb his convictions. There is
substantial evidence to support the jury's findings he committed sexual battery by
fraud.
The D was sentenced to seven years in prisons, an enhanced sentence based in
part on Julie's age.
State v. Martinez
Notes
Defendant was nineteen years old when he had sexual intercourse with a 15year-old girl. D was charged with unlawful sexual intercourse in violation of section
76-5-401.
Defendant appeals, arguing that the court erred when it held that unlawful
sexual activity with a minor is a strict liability crime and that imposition of strict
liability does not violate D's federal due process rights.
Issues
#1. Whether the court erred when it held that unlawful sexual activity with a minor is
a strict liability crime and if the imposition of strict liability violates or doesn't violate
the Defendant's federal due process rights.

#2. Whether the legislature intended to impose criminal liability for unlawful sexual
activity with a minor without requiring proof that the D intended to engage in sexual
intercourse with a fourteen or 15 year old.
Reasoning
Defendant argues that section 76-5-401, despite its plain language, does not
clearly indicate a legislative intent to impose strict liability because the general
common law principles require a mens rea for criminal responsibility. Defendant fails
to explain, however, why the legislature's imposition of strict liability for this
particular crime would not fall within one of the recognized exceptions to the general
mens rea rule, or to explain exactly why a plain language reading of the statute
negates strict liability. Instead, D repeatedly asserts the conclusory argument that this
section "does not clearly indicate that the Legislature intended that unlawful sexual
intercourse with a minor should be a strict liability crime," and cites other factors and
policy reasons the court should consider in discerning the legislature's true intent. The
statute, however, is not ambiguous and we decline to read strict liability out of the
statute. Unlawful sexual activity with a minor is a strict liability crime.
Holding
Section 76-5-401 does not violate federal due process.
Commonwealth v. Sa
Facts
The 17 year old victim from Lynn went out with friends to look for a party,
ending up in Malden at a bowling alley about 11 PM. After about an hour, the victim
and two girl friends, Lonnie and Jennie, decided to leave with Jennie's boyfriend and
his cousin, the D. The D offered to drive the group back to Lynn, a short ten to fifteen
minutes away. The victim was the last passenger to be dropped off. She gave
directions to her home, which was nearby, but the D passed the street to which she
had directed him, he then turned left when she instructed him to turn right. The D
continued to take wrong turns and began to drive faster. During the drive, the victim
became increasingly agitated and began screaming at the D for not following
directions. Eventually, she saw that they had passed signs for Reading and Burlington.
By this time, both were yelling. The D told the victim that because of her yelling and
being mad at him, he was going to rape her. The victim said she was just upset
because he would not bring her home, but the D told her that he "just didn't care" that
he was going to rape her, and that she might never see her parents or family again.
Not far past Burling, the D stopped the car, got out, and came around to the
passenger side where he attempted to pull the victim from the car, saying that she
should get out so they could "fuck for a minute". She began crying, apologized for
yelling, and asked him not do anything to her. The D agreed to take her back and gave
her his wallet to keep as hostage. The D threatened to kill her. The D then raped her,
and then apologized. The D dropped her off at his boyfriends house because she didn't
want the D to know where she lived. She told her boyfriend everything that happened,
took a nap, and then woke up and had sex with him.
Issue
#1. Whether the credibility of the complainant was diminished because having sex
with her boyfriend after a brutal rape incident would not be expected behavior in the
period of time that she was allegedly traumatized, sexually assaulted, to have had that
interaction.
#2. Whether the trail judge properly invoked the rape-shield statute to preclude
evidence that the victim had sex with her boyfriend soon after the rape.

Reasoning
The evidence was properly excluded because the D failed to show "that the
theory under which he proceeds is based on more than vague hope or more
speculation". The D's theory thus runs afoul of the rape-shild statute, which was
"principally designed to prevent defense counsel terms from eliciting evidence of the
victim's promiscuity as part of a general credibility attack".
The D's unsupported claim, that a woman traumatized by being raped would
necessarily avoid sexual congress with her partner after the crime, amounts to a
general attack on the victim's credibility of the sort that the rape-shield statute was
intended to prohibit. Even if the specific statutory language did not prohibit evidence
of sexual conduct, such evidence was properly excluded in this case because the role
that sexuality plays in the lives of two people is so varied that the nexus between
sexual activity and traumatic events is necessarily speculative. There was no abuse of
discretion.
Holding
The Defendant was convicted by a jury of one count of aggravated rape.