Rape Conviction Overturned Because Prosecutor Mislead the Court and Defense

Court of Appeals

Court of Appeals

In The People v. Boris Shaulov, 2015 NY Slip Op 02676, the New York State Court of Appeals overturned the defendant’s conviction and remanded the case for a new trial based on what the Court deemed to be an unfair surprise tactic by misinforming the trial court and the defendant about prompt outcry testimony.

Shaulov was charged with both statutory and forcible rape and other sex crimes, for allegedly engaging in sexual activity with the 16-year-old complainant when he was 23 years old.

Under New York law, Rape of any degree deals with sexual intercourse with a person without consent. There are a number of ways that the government can attempt to prove a lack of consent. In statutory rape cases, the lack of consent is based on the age of the parties because under the law, as person under 17 years of age is incapable of legally consenting to sexual intercourse. In order for the a case to be considered a rape case, one party must be under the age of consent and the other over the age of consent. If both parties are under the age of consent, rape charges may not be applicable, but other types of criminal charges may be filed.

For example, to be charged and convicted of statutory rape provision of Rape in the Third Degree, the government needs to prove that the complainant was under the age of 17 at the time of the sexual intercourse and the defendant was over the age of 21. The statutory rape provision for Rape in the Second Degree requires the defendant be 18 years old or older, and he or she engages in sexual intercourse with another person who is less than 15 years old. For Rape in the First Degree, the government can charge a person under the statutory rape provision where either the complainant was less than 11 years old regardless of the age of the defendant, or if the defendant was 18 or older and the complainant was less than 13 years old.

In addition to being accused of statutory rape under the definition of Rape in the Third Degree, Mr. Shaulov was also charged with Rape in the First Degree under the theory that he had sexual intercourse with the complainant by forcible compulsion, meaning that it was forcible rape in the traditional sense.

The facts of the case were described by the court as follows:

“Complainant testified that, on the day of the alleged sexual assault, she and defendant — who she knew through her ex-boyfriend — went to an apartment in Brooklyn sometime between 8:00 p.m. and 9:00 p.m. While they were watching a movie, defendant began to kiss and grope her and, despite her protests and attempts to resist, allegedly raped her twice. Based on complainant’s testimony and cell phone records, the People claimed the alleged rapes occurred between 9:21 p.m. and 10:57 p.m.”

Before the trial started, the prosecutor informed the Court that the complainant did not make a prompt outcry, and did not report the alleged rapes until 6 months later. The defendant relied on that representation and prepared their case based upon it. The defendant’s attorney engaged in jury selection and made his opening statement based on the pretrial representations by the district attorney that there was no prompt outcry.

Outcry is a concept in Rape cases where it describes the timing of the complainant’s first report of the rape to anyone. A prompt outcry is generally a report to a friend, family member, law enforcement, or any other relevant person shortly after the incident. A delayed outcry is a situation where the complainant does not report the alleged rape to anyone for a period of time spanning a number of days, to weeks, to even months. Obviously, a prosecutor’s case for rape in any degree is much stronger where the complainant made a prompt outcry where there is often an opportunity to collect forensic evidence. Where there is a delayed outcry, it is often much harder to prove that the crime even occurred. It doesn’t not mean that it didn’t, and prosecutors will regularly call an expert witness in rape trauma that will attempt to explain why some rape victims do not promptly report the crime. As a defense attorney, preparing a defense for a delayed outcry case is much different than the type of prep and strategy you would prepare for a prompt outcry case.

Remarkably, when the prosecutor was questioning the complainant on the stand during the trial, the complainant testified that she called a friend on her way home from the apartment that night, and “told [her friend] what happened . . . [but] didn’t tell her the whole story” and “didn’t tell her [friend] that [she] didn’t want [it] to happen.” The prosecutor purposefully elicited this testimony and “expected” the complainant to testify that she told her friend she had “engaged in sexual intercourse” with defendant.

The defendant was found not guilty of Rape in the First Degree, rape by forcible compulsion, but did find the defendant guilty of statutory rape under the definition of Rape in the Third Degree.

The Court of Appeals ruled that, “the trial court abused its discretion when it denied defense counsel’s motion for a mistrial or to strike a portion of complainant’s testimony. *** where the People failed to correct a prior representation to the court and defense counsel, where counsel was deprived of the opportunity to timely and meaningfully revise his trial strategy and emphasized the absence of any prompt outcry evidence during his opening statement, and where the error occurred early in the proceedings — the trial court abused its discretion by denying defendant a remedy for the unfair and prejudicial surprise.”

Read the original decision here.
People v Shaulov

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