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State v. Scherzer

    Brief Fact Summary.

    Defendants, Kevin and Kyle Scherzer, along with their co-defendant Christopher Archer were charged with sexual assault against a female victim who was mentally challenged.

    Synopsis of Rule of Law.

    A criminal defendant who merely urges or persuades a defendant to engage in sexual activity cannot be convicted of sexual assault by force or coercion.

    Facts.

    Defendant’s victim M.G. testified at trial she performed sexual acts on the victims after they urged her to do so but she also testified that the defendants did not force her to perform the sexual acts and that she actually consented to the sexual acts. Several experts testified to M.G.’s mental disorders including that she had poor self esteem, was mentally slower than others similarly situated, and could easily be made to do things in order for people to like her. Experts also testified that her mental condition caused her to lack any independence, she would probably to do anything anyone asked, and was incapable of exercising her right to reject the defendant’s sexual advances. The defendant were convicted of sexual assault.

    Issue.

    Whether a criminal defendant who merely urges or persuades a defendant to engage in sexual activity can be convicted of sexual assault by force or coercion?

    Held.

    No. A criminal defendant who merely urges or persuades a defendant to engage in sexual activity cannot be convicted of sexual assault by force or coercion.

    Concurrence.

    None

    Discussion.

    For a criminal defendant to be convicted of aggravated sexual assault by force, it is required that sexual penetration with another person was achieved by use of force or coercion and the defendant knows the victim is mentally deficient. While sexual penetration did occur between the defendants and the victim, there is no evidence that is was done through force or coercion and instead the sexual acts were done with the consent of the victim and urging or persuading a victim to engage in sexual acts does not qualify as coercion or force according to the law. However, the victim was still “mentally defective”, which is defined as being incapable of realizing or understanding she has a right accept or refuse sexual advances, and has no understanding of their conduct. Here, the defendants knew of the victims mental condition and while there was no force, they still engaged in sexual activity with a victim they knew was mentally deficient. The trial courts ruling as to force is reversed, but affirmed in all other respects.


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