Mind Control and Sexual Assault

This post was inspired by an email from Cameron, who asks whether vampires with the ability to glamour people could potentially be liable for rape or sexual assault. That is a really good question, and we’re going to take a look at it here.

But before we do, a few preliminaries. First, we understand that sexual assault is a really touchy subject, personally, emotionally, and even politically. Please do not think that by examining the fictional issue of mind control that we’re taking this lightly. We aren’t. Second, the way the criminal justice system deals with sexual assault charges is widely recognized to be problematic. We understand this too. Indeed, it’s perhaps the single most conspicuous area of dysfunction in the criminal legal system. It’s far from the only area in which injustice is routine, but in most of the rest of the legal system, the laws are basically doing what they were passed to do. Not so here. So when we conclude that something is/is not legal or will/will not lead to a conviction, understand that we are not thereby saying that this is a desirable outcome. But the fact is that in real life, sex crime cases rarely go well for anyone involved. If we’re going to look at the implications of something like mind control in this context, we need to be able to discuss things the way they are, even if we wish they were different.

Further, there really isn’t any way of talking about these issues without being fairly graphic. We will attempt to be sensitive and circumspect about this where possible, but this is necessarily going to be one of our more family-unfriendly posts. We think this is an important enough subject to be worth posting about, but those who don’t want to read about this sort of thing should feel free to come back on Wednesday, when we’ll return to our usual fare.

With those things in mind, let’s think about this.

I. Sexual Assault Defined

First things first: we need to understand what we’re talking about here. This blog is about the law. So we are concerned here with the legal definition of sexual assault, not its meaning in the context of sexual ethics generally. For instance, some advocates and activists who work on behalf of rape/sexual assault victims argue that any sexual activity that is not preceded, at every step, by explicit verbal consent from both parties, constitutes sexual assault. An example. Whether or not this is good practice is neither here nor there: that is not what the law says in most states, nor what juries require. In the context of a sexual assault crime, consent need not be explicit and can be inferred from both the parties conduct and the surrounding circumstances. Again, we are concerned with the legal definition of sexual assault. Just because a particular action might not count as sexual assault in terms of the law does not by any means mean that it’s an okay thing to do. That’s an entirely different analysis, and we do not pretend to be able to advance anything like a generally-accepted framework for sexual ethics here. But it seems indisputable that using mind control to make someone have sex with you is clearly wrong, even if it is not necessarily illegal. We’ll look at why in a minute, but understand that we are only concerned with the law here, not the standards of decent human conduct.

But that actually complicates things a bit, because the terms “rape” and “sexual assault” have a fairly wide range of legal meanings across jurisdictions. Sex crimes are defined by statute these days, and the differences between different states’ sex crime statutes display a lot more variation than in many other criminal areas. Some statutes eliminate the term “rape” from their statutes entirely, calling all sex crimes “sexual assault” or some other term and then sorting by degrees. Other states limit “rape” to non-consensual sexual intercourse, i.e., vaginal penetration with the penis, and classify all other sex crimes under other terms. Under such a scheme, it would be impossible, by definition, for a man to “rape” another man, but whatever crime it would constitute is usually of the same severity as “rape” in that jurisdiction. Still other states have defined crimes for “criminal deviant conduct” or other like terms, carving up various kinds of sexual assault by the kind of conduct. For our purposes, these distinctions are largely unimportant. We’re going to use the term “sexual assault” to refer to all sex crimes with an intent element and a consent element. Thus we’re not concerned with precisely what sexual activity occurs in a particular encounter. Which sex crimes, if any, the vampire could be charged with will depend significantly on state law. All we need is for something to happen that, if intentional and non-consensual, would be some kind of sex crime, and we’re lumping all of those into the term “sexual assault”. Nor are we concerned with the various species of statutory rape, as that is generally a strict liability offense without a consent element. When an adult has sexual contact with a minor, it doesn’t matter whether mind control was used or not: it’s a crime, period.

So the question becomes: if a vampire (or anyone else for that matter) uses mind control on a victim, and then engages in some kind of sexual activity with said victim, is the vampire guilty of sexual assault? And if so, will the prosecution be able to prove it?

II. Consent and Sexual Assault

As suggested above, prosecuting sexual crimes is very difficult. Only about 9% of the estimated total number of sexual assaults are ever prosecuted, and only about half of those result in a felony conviction. About 5% of the total. Contrast with murder, which even pessimistic estimates suggest has a conviction rate in excess of 40%, nationwide, with police department closure rates higher than that.

There are two main difficulties here. The first is something that causes problems for all prosecutions, i.e., ambiguity is bad for the prosecution’s case. Crimes must be proven beyond a reasonable doubt. A jury needs to be convinced, not simply that there was something sketchy going on—if that was the standard, there would be no acquittals—but that the only reasonable conclusion is that the defendant committed the crime(s) of which he or she stands accused. So when the defendant’s actions are subject to multiple interpretations, that makes the prosecutor’s job more difficult. If there is at least one reasonable interpretation that would exonerate the defendant, he or she may well walk. But this is especially problematic in sexual assault cases, because the facts which give rise to those cases tend to be rife with ambiguities. According to one advocacy group, only about 27% of sex crimes are committed by a stranger, and 28% are committed by an intimate partner (current or former). The fact that sex usually happens in the inherently messy and ambiguous context of human relationships makes obtaining convictions exceptionally difficult.

But the second difficulty, while related to the ambiguity issue that plagues all criminal cases, is unique to sex crimes, i.e., consent is the only thing that separates legal, even ethical sexual conduct from criminal sexual conduct. Granted, the presence or absence of consent is a huge issue from an ethical standpoint, but from an evidentiary standpoint, there’s very little to distinguish one from the other in many cases. It is presumptively legal to have sex with anyone you like. Adultery and promiscuity have not been prosecuted for the better part of a century. Precisely the same physical act can be legal tonight and illegal tomorrow night solely depending on whether or not there is consent. For instance, most people go on dates, and many of those dates end with some kind of sexual activity. The vast majority of the time, this is okay, legally speaking, and most people would say there’s no ethical problem there either. Juries know this. Juries can and will infer consent from the totality of the circumstances, including previous conduct by the victim, the circumstances of the alleged assault, and any relationship between the victim and the defendant. So if the victim and the defendant were in a romantic relationship, even the beginning of one, or were simply mutual attendees a party where the alcohol was flowing and lots of people were “hooking up,” convincing a jury that this time it was non-consensual can be an extraordinarily difficult sell.

Contrast with, say, bank robbery. Call it a “non-consensual withdrawal” to make the analogy easier to see. Making a withdrawal from one’s own bank is okay the vast majority of the time. But the criteria which make a legal withdrawal from an illegal one are supported by mounds of evidence. One either has sufficient money for the withdrawal or one does not, and the bank will have readily available evidence that does not admit much in the way of ambiguity. The presence of masks and guns makes it even easier. But where sex is involved, and there’s no overt violence—and there isn’t in many, many cases—the prosecution frequently does’t have much to go on. It’s the victim’s word against the defendant’s. That can be enough. But it frequently isn’t.

Further, sexual activity is only sexual assault when it is non-consensual at the time. Having consensual sex with someone and later regretting it does not transform that encounter into a sexual assault. You can change your mind the morning after, but that doesn’t change the nature of what happened last night. Juries know this too, and it muddies the waters even further.

III. Mind Control and Sexual Assault

This is what makes the interaction of mind control and sexual assault so problematic. Let’s say we’ve got a defendant vampire, and a victim who claims that she was induced to have sex by the power of the defendant’s glamour. Even if we stipulate to the fact of the sexual contact, all the defendant needs to do is create reasonable doubt as to whether the alleged victim consented or not. This can be accomplished in a variety of ways.

First, he could simply deny having “glamoured” her at all. Who’s going to provide evidence to the contrary? Assuming that the effect of “glamouring” people is to make them involuntarily or even willingly do whatever the vampire wants, all the victim is going to know is that she had sex with the vampire and thinks she was glamoured at the time. That does’t leave the prosecution with much of a case. Unless the use of the glamour leaves physical, detectable traces (and it doesn’t in most versions of these stories), the case is no different from any other cases where it’s the victim’s word against the defendant’s. Indeed, depending on who’s doing the writing, many vampires could plausibly assert that they don’t need to use their glamour to get people to have sex with them. Given the prevailing modern trend of portraying vampires as fascinatingly beautiful rather than repulsively ugly, that could be a pretty effective argument in many fictional worlds. Throw in prejudice and/or bias by the jury, and anything goes.

Second, and this is where we really get into it, whether sexual activity engaged in while under the influence of mind control would even count as non-consensual is a thorny question which will depend significantly on state law. New York, for instance, has an pretty detailed, granular statute (N.Y. Penal Law 130) dealing with sexual assault. The statute distinguishes between the “mentally disabled,” i.e., the permanently mentally deficient, and the “mentally incapacitated,” i.e., the temporarily mentally impaired, and makes it a crime to have sex with either. A “mentally incapacitated” person is “temporarily incapable of appraising or controlling his conduct” because of any act to which he did not consent. The section seems specifically designed to deal with spiked drinks, but it covers “any. . . act committed upon him without his consent.” Would glamouring count?

Probably. Glamoured people move and act much like non-glamoured people in terms of the way they do things, so they can arguably “control” their actions within the meaning of the statute, or at least the prosecution will have a hard time proving otherwise. But glamoured people do seem to lack the capacity to “appraise” their conduct, i.e., make reasoned decisions about what it is they’re doing. So even if their actions are arguably voluntary, they’re not really knowing actions. That isn’t enough by itself—getting hammered of one’s own accord does not automatically render one “mentally incapacitated”—but if the prosecution can prove both that the victim was glamoured (good luck) and that it was done without the victim’s consent (ditto), that would seem to fit the bill. A prosecutor who could prove both of those things could well get a conviction, but he’s got a fight on his hands.

But consider the law in Indiana, which has its own, somewhat narrower sex crimes statute. Ind. Code 35-42-4-1 makes it a crime to have sex with someone who is “compelled by force or the threat of force.” This sounds good, and the courts have interpreted that fairly broadly, but all of those interpretations focus on the perception of the victim. Anything that a victim reasonably perceives as a threat of force can serve to ground a conviction for sexual assault, but the victim must perceive it. As glamoured persons don’t typically perceive themselves being glamoured—they may realize it later, but they don’t experience it at the time—that isn’t going to work. Further, the courts seem to interpret “force” to mean “physical force” or “the threat of physical injury.” The court’s require sex with an unwilling victim. If the victim is willing, and was made so by anything other than the threat of physical violence, that doesn’t seem to count as sexual assault in Indiana. But even if it did, the prosecutor would still need to prove that the glamouring happened, and now we’re right back to the evidentiary problems we discussed above.

The Indiana statute also prohibits sex with anyone who is “so mentally disabled or deficient” that they cannot give consent, but the relevant cases seem to limit this to what the New York statute classifies as “mentally deficient,” i.e., the permanently mentally impaired. There does not appear to be an analog to the “mentally incapacitated” category, and the statute treats spiked drinks and the like as an aggravating factor, not an independent ground for a charge. So an Indiana prosecutor couldn’t use the same legal theory of mental incapacitation as a New York prosecutor could. On the other hand, Indiana does specifically criminalize sexual activity with someone who is “unaware” that the activity is occurring. But if the glamoured victim was aware of what was going on, as they seem to be in most of these accounts, that won’t help either. So even though making someone have sex with you by using a glamour is clearly wrong, it might not constitute sexual assault under a statute like Indiana’s.

IV. Conclusion

Thinking about this issue exposes a lot of the difficulties in sexual assault cases. Take what may be an already messy, ambiguous situation, say two people meeting at a bar. Add a supernatural power to manipulate people, combine with diverse state criminal statutes, and you get a legal result that sometimes runs counter to our ethical intuitions. Using a glamour or mind control to get someone to have sex with you is clearly wrong. But it might not be illegal everywhere. It all depends on how the power works and how the state law is written. But even if it is illegal, such a case would be difficult for a prosecutor to win, regardless of jurisdiction, even by the already difficult standards of sexual assault cases in general. It’s a tough one. If nothing else, it may suggest that legislatures really need to rethink their sexual assault statutes. But there’s already a lot of pressure to do this, and there don’t seem to be many obvious fixes.

74 responses to “Mind Control and Sexual Assault

  1. Alternate theory: Battery (common-law battery, now statutorily referred to as assault in many jurisdictions.)

    No, hear me out.

    Our brains are biochemical machines. At the end of the day, the controller’s actions in glamouring must affect the functioning of those biochemical machines *directly.* Neurons are being manipulated. How it works is unimportant: all that matters is that it works. Battery does not require *direct* touching, only that the controller do something which they know and reasonably believe will result in an unwanted physical impact upon the victim’s body. If your jurisdiction wouldn’t convict someone of battery for zapping somebody with microwaves, for instance, then this might not work. Otherwise, I think it could fly.

    This is distinguishable from speaking to a person – which also technically alters the brain in that the impact of the sound waves causes neural activity which is arguably an impact on the brain. Speaking to a person who is in an area where you are and have a right to be is an ancient exception to assault/battery. There is no logical exception for mind control.

    • Same basic evidentiary problem: you need to prove that the glamouring happened. You’re insisting upon a physical explanation which (1) doesn’t obviously hold true in the stories we’re talking about, many which are clearly dualistic in their metaphysics* and (2) even if it did, would not necessarily be demonstrable with admissible evidence. If the prosecutor can prove the glamouring happened, he can probably prove the sexual assault charge he’s really aiming for, so there doesn’t seem to be much reason to use half measures.

      *It’s fiction. Accepting the metaphysics of the world on its own terms is what suspension of disbelief is all about. Forcing a materialistic, empirical framework on an obviously fantastical and supernatural fictional world doesn’t work as an analytical strategy.

      • I agree that your argument makes a lot of sense, but I don’t stipulate that even in a dualistic universe it doesn’t follow that the glamour isn’t doing something physical. Unless you’re in a universe where people are basically solid inside, like steak, even if it’s working on their spirit/soul/etc, it will have an *effect* on their brains. It’s just another layer of indirect contact between the controller and the victim which ends up with an ultimately physical effect.

        I would distinguish the problem of consent in the two cases in a slightly different way. In some jurisdictions, glamoured consent may be within the law’s technical requirements because it may have no exception which can reasonably be interpreted to exclude it, either because it doesn’t distinguish or because its exceptions are exclusionary. Contrarily, there is no way a victim could consent to being glamoured because you cannot consent to what you do not know is happening. (A victim who is willingly glamoured and consents knowingly *before the glamour occurs* would be an exception, obviously.) Therefore if you can prove glamouring, you can prove battery, even if you can’t prove sexual assault because glamoured consent fits within the law’s parameters.

      • Philo Pharynx

        @Marc, Even if it affects their brains, is this in a form that can be easily measured (i.e. with an MRI and not a biopsy)? Does it have characterstics that cannot apear in any other way? Do the effect persist in the brain after the glamour ends? If not, it gets into he-said, she-said.

    • I think you have a good idea, but its unnecessary to go into the biochemical machines part or any philosophical musings about the mind-body duality.

      It is enough to say that the “glamour” or in other fictions “dominate” attempt is an offensive contact with the mind. So long as the mind is part of the person that is sufficient. As you say, this is a very direct contact with the mind which is distinct from the very indirect effects of simply saying something which can then be ignored.

      This same reasoning could deal with the definition problems in Indiana. This certainly seems like a “force” and even if that word is normally taken to mean “physical force” then a supernatural domination could easily be seen as a “supernatrual force analogous in every meaningful way to a physical force.” If that required any tweak in the definition it would be a tiny one that I think a court would readily make without waiting for the legislature.

      Of course, all of this still leaves the evidence problem. In some fictions that might be nearly insurmountable. But I would point out that in most fictions that include vampires you will also find mind-readers or telepaths or some other form of supernatural that is capable of detecting these things after the fact. (Whether or not those supernaturals would cooperate with the prosecution is another question.)

      This would also deal with the problem of definition in

  2. There was actually an interesting case in CA a few months ago. Sadly, it’s been long enough I can’t find the article to link anymore. A woman had been out partying with her (apparently new) boyfriend, and brought him home for a night of passion. But he didn’t have any condoms, so they agreed to wait for another night, and he went home.

    Some time later, as the article puts it, she awoke “to the sensation of having sex.” She apparently did nothing to discourage her romantic partner, believing him to be her boyfriend returned to surprise her. When the lights came on, she discovered it was NOT her boyfriend, after all, but a man who had followed them home and seen her boyfriend leave. (Presumably, he’d known something of their plans and figured out this was an “opportunity” he could exploit.)

    She accused him of rape, and there was a conviction. However, his lawyer got it overturned invoking an old law on the CA books that apparently covers this exact situation: it’s only rape, by that statute, if the woman had been married.

    My GUESS – the article and what limited extensions I could find at the time were not clear – is that the thinking behind the law was that an unmarried woman who was not objecting to having sex could not claim rape because she didn’t realize who her partner was, since there’s no legal presumption of exclusivity. Basically, “she’s sleeping with somebody not her husband anyway, so she obviously just wanted some sex, and was willing.” If she is married, however, I think the thinking goes, tricking her into thinking you’re her husband DOES constitute rape because she could be presumed to have been unwilling without that deception.

    The tone of the article was basically one of outrage at the double standard over whether the woman was married or not, but I have to question if that outrage is warranted. Not because I’m declaiming unmarried women who have sex with boyfriends but not others, but because there is no legal definition of “boyfriend” (or even “fiancee”), only “husband.” So if deceiving a girl (or boy) into sleeping with you by concealing or lying about your identity is rape, that means you could prosecute a guy who looks like Justin Bieber for telling some fangirls that he WAS said singer and sleeping with their very enthusiastic consent. Or a woman who claimed, say, to be Hallie Barry (I’m probably mangling the actress’s name, there) to sleep with a fanboy (of otherwise legal consenting age and mental faculty).

    So, I suppose no questions in this one, per se, just observations and commentary. It’s an interesting corrollary to the vampire’s “glamour,” though: it could be seen as a deception. “You want to sleep with me,” says the vampire’s magical powers. So, too, does the lie, “I am that hot celebrity that you want to sleep with.” So for a question: Might these be comparable?

    Also, given that statutory rape (adult-with-minor, even with consent) is brought up…what if the vampire were the minor, and glamoured a legal adult into sleeping with him? Take any of the “teacher sleeps with student” stories and make the student capable of glamouring the teacher, for instance. Obviously, if the student forcibly rapes the teacher, the teacher is not prosecuted for statutory rape (and, likely, the student is), but when glamour is involved…do we have mens rea that can be used as a defense?

    Is the standard such that the reasonable doubt clause can both protect the vampire (minor or not) from rape charges and protect the minor-vampire’s glamoured paramour from statutory ones?

    • In the case you mentioned, a conviction was overturned because the appeals judges recognized that the theory that the prosecutor had presented to the jury was wrong: he prosecutor told the jury that the stranger had impersonated her boyfriend and the jury convicted the accused based on the theory that you are not allowed to impersonate someone in order to have sex. A lawyer for the defendant realized that this theory is not valid because the woman would have to be married AND the man would have to be impersonating her husband. (Supposedly if a woman were having an affair and somebody impersonated her lover then she would be out of luck.) As you say, “boyfriend” is not a well defined term so there is no law in California against impersonating a woman’s boyfriend and having sex with her.

      That, however, was not the end of the story because the judges ordered a new trial and the man may be convicted a second time. Why? Because the woman was allegedly sleeping when the man entered her in which case she obviously didn’t give consent. It was a bit ridiculous for the defense to put forward their “impersonation” theory if there wasn’t consent but they probably wanted to avoid having to prove that the woman was sleeping. The problem is that the judge apparently did not give correct instructions to the jury: the judge should have known that an unmarried woman can’t accuse someone of rape if they were simply impersonating someone who she knew. The appeals judges probably felt they had no choice but to overturn the conviction.

      The second trial wouldn’t be a walk in the park for the prosecution, however, because the prosecution will now argue that she WASN’T sleeping and that she knew that there was somebody in the room who was about to have sex with her and she only got upset when she realized that it wasn’t her boyfriend. Under that theory the defendant gets off.

      If he does get convicted a second time then it sounds like double jeopardy. Obviously having a conviction overturned is not the same as an acquittal: you can go to trial a second time and still be convicted.

      • http://articles.latimes.com/2013/jan/03/local/la-me-rape-impersonation-20130104

        “The justices noted that prosecutors advanced two legal theories — that the defendant raped by tricking the victim, which applies only to married women, and that he committed rape by having sex with a sleeping person.

        “Because it was unclear under which theory the jury convicted Morales, the court overturned the conviction. If Los Angeles prosecutors retry Morales, they may prevail only under the sleeping person theory and only if they prove Morales knew the woman was sleeping when he had sex with her, the court said.”

    • I think the old California law from 1874 was written with husbands in mind rather than wives. Essentially if a woman is deceived into having sex with another man then the woman’s husband has been wronged and, because the man’s wife didn’t do anything wrong by consenting to have sex with a man who she thought was her husband, the man who had sex with her then has to be charged with rape so that the husband can get justice. On the other hand, if an unmarried woman has sex with someone whom she thinks is her boyfriend, she and her boyfriend have made no lasting commitment and the boyfriend is free to go find another girlfriend now that this woman is no longer a virgin. (Sheesh!)

      As far as lying is concerned, there was a case in Israel where a Palestinian man told a woman that he was an Israeli and a woman agreed to have sex with him but he was convicted of rape even though she consented!


      • Ken Arromdee

        The Israel case has been exaggerated by the media to feed anti-Israeli sentiment.

        Basically, what happened was that it was a forcible rape that was plea-bargained down to this charge.

    • “So if deceiving a girl (or boy) into sleeping with you by concealing or lying about your identity is rape, that means you could prosecute a guy who looks like Justin Bieber for telling some fangirls that he WAS said singer and sleeping with their very enthusiastic consent. ”

      We are getting into personal opinion rather than law, but from a policy standpoint it seems that there is good reason to consider gaining consent by impersonating another specific person to be some form of sexual assault.

      Perhaps not just any lying about who you are should count. Lying about your job title while flirting is unethical, but not the type of deception we are talking about. But deceiving the other person into believing you are their significant-other (or a long lost crush, or yes even a specific celebrity) is in many ways akin to removing their capacity to consent.

    • With the statutory rape case you are back in the same evidentiary quagmire. How do you prove you were glamoured? If this is proved, I think you’d find that most juries would not convict. It’s similar to the case of a minor raping an adult at gunpoint. By the facts, the adult is guilty of statutory rape, but most prosecutors wouldn’t bring up charges against both parties and often the jury wouldn’t convict.

    • This exact situation came up in Ireland, (boyfriend/girlfriend, dude comes in and has sex with her) and the guy was convicted. The theory went that the consent wasn’t valid as it was obtained by fraud. Just because she might consent to having sex with someone, doesn’t mean she’s consenting to have sex with YOU, so any consent obtained by not declaring your actual identity is vitiated by the fraud.

  3. Even worse, what’s to stop the defendant from “glamouring” the jury into an acquittal? That would seem to make it impossible to get a conviction in the described circumstances.

    • Melanie Koleini

      Depending on how glamour worked in the particular universe that might not be a problem. Most of the time a holily object or certain magical charms can detect and/or protect against glamour.

  4. I believe early Anita Blake novels make mention of vampire glamours from a law enforcement perspective but unfortunately they never went any further than needing to check to see if a man had been bitten by a vampire and casting doubt on a woman’s story of fighting off a vampire using a glamour on her*.

    *Something along the lines of her actions being too rational and capable for a regular woman who was under vampiric influence.

    • Melanie Koleini

      The Anita Blake novels have an entire set of laws that deal specifically with magical powers (of vampires and others). In Blake’s universe, compelling someone to have sex with you using magic is rape (death sentence if proven). I don’t remember if that was a MO or federal law. I think a vampire using their glamour to make themselves look more attractive is legal though.

      • In fairness, in that universe pretty much ANY crime committed with powers is a capital offense.

      • Terry Washington

        Boy, the definition of “personhood” has certainly expanded under the US Constitution, from freed slaves and their descendants to corporations, great apes and now presumably even vampires!
        Could it be extended to aliens(people from other planets as opposed to non-US citizens)?

  5. Love your site, this was a great post, and thanks for dealing with the issue objectively and with sensitivity.

  6. How do the various states treat rape when drugs like Rohypnol (or whatever) are involved? Is it heavily reliant on proving the drug was in the person’s system? (No idea how long the drug lasts, but I can easily imagine versions of drugs where they quickly become undetectable.)

    • It varies. Indiana escalates the classification of the felony. By itself, rape is of the same classification as voluntary manslaughter (Class B), with a minimum sentence of six years. If you use a controlled substance, it’s classified on the same level as voluntary manslaughter with a deadly weapon (Class A), with a minimum sentence of twenty years.

      New York defines it as a separate crime entirely, “facilitating a sex offense with a controlled substance.” So you’d be looking at a felony conviction for the underlying sex offense, plus another felony conviction for the use of the drug.

  7. Nor are we concerned with the various species of statutory rape, as that is generally a strict liability offense without a consent element. When an adult has sexual contact with a minor, it doesn’t matter whether mind control was used or not: it’s a crime, period.

    If an underage vampire glamours an adult, who raped who?

    • “Strict liability” is “strict liability” and a person would be convicted of statutory rape even if the vampire shape shifted and appeared as an adult. (Even in real life, a lot of young girls can pass as adults with make up.) However, it may be a moot point because the vampire may not be considered a living human being so the accused could be charged with having sex with a corpse which is can be either a misdemeanor or a felony but not rape.

      • Ryan Davidson

        Not convinced that’s true. Statutory rape is a strict liability offense, but that only negates the consent element. Even with strict liability offenses, the conduct in question must be voluntary, and the same defenses of necessity, duress, and involuntary action still apply. These are not defenses to the mens rea element, but the actus reus element, so they apply equally in strict liability and intentional act cases. So if the adult defendant can establish that he was raped by the alleged minor victim, that ought to serve as a defense.

    • This also raises the question of whether we use temporal age or age at death/apparent age to determine culpability for statutory rape. The way the laws are written now in the states where I am familiar with them (just my own and one other, researched to settle a law nerd argument) I think any argument that a hundred-year-old-vampire with a thirteen-year-old body was a potential statutory rape victim would fail mightily. But given the dual goals of the statutory rape scheme (protect the young, dissuade predators) it might make sense for it to be applied in some cases. Hopefully a hundred-year-old vampire can take care of themselves and in any event after 87 years of undeath they are likely not so innocent as to be unable to deal with it as well as a human of the age of majority. But we *still* don’t want to tolerate adults having sex with children, or even things which are reasonably similar to children. (Cue the underage sexbot argument.)

      • Ryan Davidson

        The courts don’t really like strict liability offenses, and the judiciary is increasingly aware of the problems surrounding statutory rape laws given the rate at which minors are engaging in sexual activity these days. They have a tendency to impose strict, literal readings as to the age requirements. “But she looks fourteen!” is no more a ground for a statutory rape charge (or a child pornography charge, for that matter) than “But she looked eighteen!” is a defense to a statutory rape charge. The alleged victim either is of age or not, and appearances don’t enter into it.

        Legislatures are not going to pass laws making it illegal to have sex with adults who don’t look their age any more than courts are going to countenance them.

      • Well, a vampire can actually BE a minor by chronological and legal definition, recall. Turn a 13-year-old, and he’s still 13 until he turns 14, 15, 16, etc. Chronologically and legally, then, you can have a vampire who is a legal minor (assuming the law doesn’t instead classify the vampire-kid as something other than a “person”).

      • Philo Pharynx

        I could see some jurisdictions imposing laws against people who appear to minors. Check out Australia’s actions agains porn with small-busted women. America has tried to ban simulated depictions of sex with minors.
        I don’t think these laws would pass Supreme Court review as you would have to balance the harm to the person (essentially denying them a sex life) against the harm to society (potentially providing arousal to pedophiles/ephebophiles).
        Also, in the case of vampires, I tend to think that turning a minor would become a crime as well.

  8. I’m not sure I necessarily agree with your analysis. I think to the contrary, glamour is merely a way to obtain consent. In most portrayals of glamour that I have seen, it merely implants into the subject’s mind a very strong desire to do something. That desire is then subject to normal psychological processes. For instance, the subject will sometimes not fulfill said-desire when it conflicts with a sufficiently powerful other desire. (love, faith, self-preservation, etc…) In that sense, this is very different from standard mind-control. (or more classic psycho-active drugs) The subject of the glamour is no prisoner of their own body or mind watching helplessly as another controls them. They are instead merely committed to a particular goal which they pursue of their own free will.

    I think a better model for glamour would be seduction or persuasion, rather than drugs.

    I think if glamour is to result in any criminal or civil suit, it is for the moment when the subject is subjected to the glamour. Usually the subject is spell-bound, unable to escape until the glamour has been used. At that moment, they have lost their free will and are not consenting to what is happening.

    • Seduction* does not implant in the individual affected a sudden desire to sleep with someone who, without said seduction, would be utterly repulsive. A glamour is generally depicted as being able to cause people to do things that would be normally unthinkable to them. There’s a clear difference between simply saying and doing things the other person wants and altering their mentality via mystical means to be agreeable and from that I think the drug comparison is valid.

      *I realize that this may sound confused in a field that hates vagueness and confusion but bear with me.

    • I don’t agree with you. In most fiction, the glamour seems more like mind control than natural charm (unless the “glamour” means using shapeshifting or illusion to make oneself preternaturally physically attractive). However, this is exactly the kind of ambiguity that would make this kind of prosecution difficult, with another area for dispute.

    • This is very much a subjective, universe-dependent question, absolutely. In one of my books (I write books about FICTIONAL erotic mind control) the controller becomes magically enhanced in such a way that people believe anything he says is true, is true. If he says, “I’m the sexiest person you’ve ever met” to someone, they’ll believe him. If he says, “you need to have sex with me or you’ll *die*” they’ll believe him. However, absent somatic suggestion effects, it isn’t actually TRUE.

      To me this is somewhere between “you’re inclined to like me” glamours such as you seem to be postulating, and “you have to do whatever I tell you or even just want you to do,” as are seen in many modern vampire stories. It’s still hideously immoral, in my opinion, but absent actually making threats, I don’t see this as unlawful activity under the kinds of analysis we’re looking at here. He’s doing the same thing any pushy cad in a bar might do – walking up to a woman and boasting. The fact that she’ll believe his boasts is not a quality that the law recognizes, in our world, as altering the legality of the actions. In a different world (e.g. the Hamilton books mentioned above) it could be quite different.

    • This depends very much on the fictional universe we are talking about. As it is a role-playing game, Vampire: The Masquerade has some very well defined rules for it. In that case, the further a deparature from a persons normal character a particular action is, the harder the dominate attempt is for the vampire. But that just affected how hard it was, if success was achieved then it was no longer a suggeston, but a compulsion.

      Even in a gentler system where the vampire really could only “suggest”, then it still involves a lowering of inhibitions. This would be akin to spiking a drink by causing the other persons inhibitions to be lowered through no action of their own. (It is distinguishable from the other person getting drunk in a normal way because the drunk person normally had the choice to get drunk or not. Here the victim didn’t have a choice about doing something that would lower their inhibitions.)

      • Ryan Davidson

        This would be akin to spiking a drink

        Would it though? That’s the real question, isn’t it? Spiking someone’s drink without their knowledge is illegal in every state I checked. But seduction techniques aren’t. Which one is a glamour more like? I think morally speaking it’s more like the former, because it’s not a simple seduction technique. It involves manipulating the other person’s will by supernatural powers.

        But I’m not sure the law would necessarily see it that way. Or, at least, it is not obvious that the current law sees it that way. One assumes legislatures would take appropriate action if such phenomena existed, but until they do, we’ve got a grey area. The problem is that, unlike one commenter suggested above, glamouring does not seem to involve any kind of physical touching. As such, the defense could argue that glamouring is just a really effective seduction technique. Again, I think there is a clear moral difference, particularly if we’re given authorial omniscient insight into the metaphysics of the situation, but absent that kind of information. what’s the counter-argument? Right now the law doesn’t really have a category for the ability to make people do what you want simply by telling them to do it, absent any kind of threat or physical touching.

      • @Ryan Davidson

        You make some excellent points, it is hardly a decided area of law. And it also depends on the fiction in question.

        In Vampire: The Masquerade there are several mind affecting powers available. Awe essentially makes those around the vampire perceive the vampire in the best light possible. It can definitely influence the actions of people and it is superantural, but that one is fairly gentle and truly can’t make someone do something they would normally find reprehensible. Awe is more like seduction, but really effective seduction. In absence of specific laws banning it, I suspect use Awe for seduction would be legal.

        Dominate can compell someone to do things. The person can resist, but if they fail they are compelled. I suspect that even under present laws a dominated person could argue that a force was used. Granted it was a supernatural force rather than a physical force, but under any statutes that did not very explicitly find “physical” to be necessary I think a court would find the laws covered supernatural forces. Even if “physical” was in the statute, I think many courts would find it a distinction without a difference (or find a way to say it was a physical force acting at a distance, similar to the way gravity or magnetism works…). So, while definitely unsettled and you make good points, I think a court would find domination to be assault.

        Of course, the proof issue you bring up in the post remains, but if that can be overcome I suspect few jurisdictions would have an issue of law.

      • Philo Pharynx

        It would also depends on the effectiveness of the power. In most fiction, a strong-willed person can overcome the compulsion. In some cases, only people with special training or who can use mental powers can resist. This would probably be treated more like drugs. If a relatively normal strong-willed person can resist, it would probably be considered more like seduction. After all, a lawyer would argue that a weak-willed person would be easier to seduce by nonmagical means. (In many role playing games and ordinary person can resist if they roll well, so it would probably be more like the latter case).

  9. If you reset the universe and in the new universe, person A is a rapist, can you be blamed for that? (Ignore questions of how we can prove it.)

    Assuming the answer is no because the person still made choices in the new universe, what happens if you reset the universe, and the new universe is more violent, so you can trace the increased number of rapes in the new universe to the reset, even if you can’t trace any particular incident to that?

    (I wondered about this when the Perez Wonder Woman came about. The Amazons’ backstory included rape and it occurred to me that anyone could become a rapist if you reset the universe until they did.)

    Also, if you reset the universe so that the child of you and person A is now the child of you and person B, is that kidnapping? (This actually happened in Artifacts with Jackie Estacado and Hope.)

    • Reseting the universe is an odd case. It’s incredibly difficult to prove, as oftne only one person or a small group knows about the reset. If A is not aware of the universe resetting, then he’s unambiguously guilty. If he is aware, then he would need to prove that he is not the person who did these crimes. If there is telepathy that can read his memory and no power that can modify memories, then this is possible. (Sadly, research proves that it’s possible to modify memories in this universe, so their universe would have to have some form of memory that couldn’t be changed)

  10. On a similar note, what of the case of having sex with someone while having taken over someone else’s body (i.e. person A’s consciousness in person B’s body has otherwise-consensual sex with person C)? Besides whether person A has sexually assaulted person C, have person A and/or C sexually assaulted person B? Does it make a difference if person C knows that it’s person A’s consciousness rather than person B’s?

  11. How about the intersection of vampirism with the various statutes criminalizing necrophilia? Are you in hot water because you had sex with someone who isn’t alive, or in the clear because you had sex with someone who isn’t dead? And if it’s the first one, “but she looked alive!” a defense?

    • Depends on how vampires are written, I suppose. Are they really corpses? “Corpse” isn’t always a defined term, so I can see a court defining its way out of that problem by recognizing that the legislature probably didn’t have this situation in mind when they passed the law.

      Regardless, these statutes generally have an intent element. The act needs to be knowing or intentional, so “She looked alive!” would be a defense if the jury bought it.

  12. Terry Washington

    It all depends whether a vampire can be classed a “person” in the accepted legal sense of the word(just as pace Dred Scott in the now notorious 1857 US Supreme Court ruling of the same name, blacks whether slave or free, were permanently ineligible for US citizenship and therefore had no rights that whites were bound to respect) or even classically alive strictly speaking. “True Blood” has tried to address these issues in part but these are still unresolved issues!

    • I don’t think race issues in general or Dred Scott in particular are the main problems. It’s whether they’re considered “dead”. If they are, they wouldn’t be persons. If they’re not, then they would be persons. Applying the Uniform Determination of Death Act to vampires would be a tricky problem and would significantly depend on the way they’re written in a particular fictional world.

      One of our guest posts, Death and Taxes and Zombies actually discussed the definitional problems with the undead in the zombie context. Much of that discussion is applicable to whether vampires would be considered “dead”.

  13. It really depends on how the glamour works. I know in the Anne Rice world of vampires the glamour can’t make someone do something they wouldn’t already do. Lestat often comments how he can only compel those already looking for death (even if only on a subconscious level) to respond to his call. It’s more of a strong suggestion than an actual mind control. I think in this case it would be more akin to picking up a girl at a bar who already had it in her mind to go home with someone, she just needed someone to say hi. The potential for rape is moot, however, in Anne Rice’s world as her vampires lose all sexual desire when they die.

    • Ah, but lets assume that a woman is preparing to meet her boyfriend at a bar. She hasn’t seen him in a while and she’s thinking about sexual thoughts. If the glamour affects her, then it would be ethically wrong, if not proesuctable. If it only affects people that would theoretically have sex with the vampire, then it would just be an efficient seduction technique. (And not as dramatic).

      • Philo Pharynx

        P.S. in the Anne Rice case, it could be argued that charming somebody to feed on them is an equivalent case (substituting physical assault for sexual assault). Most courts would rule that you could voluntarily let a vampire feed, but not unto death.

  14. There’s the potential for headaches on these lines in the real world. While it’s nigh-impossible to use hypnosis to get someone to do something they’re inherently opposed to, and much more difficult in the real world than slipping in a music CD with some subliminals into the stereo, it’s certainly possible to bypass mere socially normative inhibitions, and thus use it to elicit consent where it wouldn’t ordinarily be forthcoming.

    A quick search of cases via Google Scholar mostly turns up references to the applicability of testimony with hypnosis-aided recall. However, it also turns up a reference to South Dakota’s rape law, which includes where “the victim is incapable of giving consent because of any intoxicating, narcotic, or anesthetic agent or hypnosis” — emphasis added. I suspect in South Dakota, a Vampire’s glamour would almost certainly be considered included.

    On the other hand, there’s apparently been at least one prosecution under Pennsylvania law for an alleged rape aided by hypnosis, which case failed from much the sort of difficulty of proof discussed (among other problems).

  15. Re Philo and the Anne Rice case if a woman is waiting for her boyfriend and is having sexual thoughts, those thoughts are most likely about her boyfriend and not just generalized thoughts about any one. I would imagine a glamour would not work on her as she’s probably not open to sex with just any one, rather just with one person. If she’s committed to her relationship and wouldn’t otherwise cheat, and a glamour can’t make someone do something they wouldn’t otherwise do, I don’t think it would work.

    As for the physical assault of drinking a victim’s blood, in her world I don’t think a vampire would be guilty of physical assault until he/she actually took the victim and drank their blood. Unlike the argument made above about a glamour creating a physical change in the victim’s brain, the Anne Rice vampire more or less sends out more of a telepathic communication that says death is here for those that want it. The vampire doesn’t have to follow through just because someone answers the call. This is probably close to assisted suicide than anything which would be an interesting topic to look into.

  16. And, of course, how does this affect various lying defenses?

    Let’s say there’s a vampire who looks thirteen years old. She lies and says she’s a hundred year old immortal vampire and demonstrates a vampire power to prove it (at least, to prove she’s a vampire and might be a hundred years old). But she’s actually just a fourteen year old vampire.

    Does that change the facts at all from a thirteen year old showing a fake driver’s license to demonstrate that she’s eighteen?

    • The prosecution bears the burden of proving every element of the charged offenses beyond a reasonable doubt. For statutory rape, this includes proving that the alleged victim was underage. If the prosecutor doesn’t have some evidence to prove that, e.g., a birth certificate or other official documentation, then a statutory rape charge would never be brought in the first place.

      • If the vampire were really 100 years old, they probably would have disposed of their old identity. Fortunately, in most vampire stories vampires get stronger with age, so it COULD just be a matter of beating a vampire of known age in an arm wrestle.

      • Ryan Davidson

        But if the vampire can’t prove their age, then the prosecution has no case. There’s got to be evidence of the age of the alleged victim or it’s going to be impossible to sustain a conviction for statutory rape. So if the prosecution can’t establish a person’s legal identity, including their date of birth, the DA is going to pass on that one. Better things to do with his time.

      • Going back to the bare bones technicals on statutory rape, the law has, you’ve said, been very literal about it. No “but (s)he looked 18” works. If (s)he produces a driver’s license that fraudulently indicates she’s 20 when (s)he’s really 16, I believe you’ve stated that the law still will call it statutory rape. Is that the case?

        If so, how far into deliberate deception would the minor have to go before mens rea no longer applied on the part of the accused?

        And, this might be something for another article entirely, but they joke tangentially to it in the show itself:

        In Young Justice (the cartoon series from last year), Superboy is a clone who was force-grown to about 16 or 17 in appearance and psychically force-fed information so he could function. By the time of season 2, he’s chronologically only 6 years old.

        In discussing membership in the Justice League, the adults comment at one point that they seem to have decided on 18 as a good minimum age for actual League membership. They raise the question of whether Superboy should have to wait until he is chronologically that old or just until his “apparent” age would make him have aged enough. (This also raises questions for potential future robot members of the team; Red Tornado might already be 18, but he could have been much younger and still been as mature as he is now.)

        Bringing it back around: would the law consider a clone, such as superboy, to be “statutory” for this purpose? This also ties a bit back to “how much deception is needed?” if the clone, say, impersonates the non-spousal (since we have CA precedent for that counting as “rape” on the part of the pretender, and that would obviate statutory rape on the part of the deceived) romantic partner of the accused? The romantic partner is of legal age, but the clone was “force-grown” and is only a few weeks old, let’s say.

        Alternately, two siblings who could be twins, but are actually a year or two apart. The younger impersonates the older in the above scenario, where the younger is legally a minor and the older legally an adult. Is the deceived paramour – who may not even have known “she had a sister” – still guilty of statutory rape, or is lack of mens rea a defense?

        All in all, statutory rape laws and their lack of “I didn’t know any better” defenses seem a good argument for celibacy until marriage on legal precautionary, even if not ethical or moral grounds.

      • Ryan Davidson

        how far into deliberate deception would the minor have to go before mens rea no longer applied on the part of the accused?

        Mens rea never applies to statutory rape. Intent is not an element. The alleged victim could lie through her teeth, and the defendant would still be guilty if she were underage.

        The reason the defendant would not be guilty in the case of necessity/duress/involuntary action is because only voluntary acts can be subject to criminal penalties, and the voluntary quality of an act is associated with the act element, not the intent element.

        Consider the case of a bank robbery where the defendant is threatened with the murder of his family unless he robs the bank. Is he intentionally and knowingly robbing the bank? Of course. So he has the requisite mental state. But his actions aren’t really voluntary, and that negates the act element. It wasn’t really him robbing the bank, it was the person who threatened him.

        But statutory rape has no intent element at all, With statutory rape, as long as the defendant engaged in sexual activity of his own volition, i.e., he was not himself sexually assaulted, then if the alleged victim is underage, that constitutes statutory rape. Period. The defendant’s knowledge of and beliefs about the victim’s age are completely and entirely irrelevant, so deception about that is also irrelevant.

      • So, then, would “ha! I’m not Susan! I’m her underaged sister who looks just like her!” remove the “voluntary” part of it? Or not? He -was- willing to sleep with Susan (whom is, and he knew is, a legal adult), and would have said “no” to her younger, underaged sister. Had she not tricked him into thinking she was Susan.

        …I have to wonder what would happen if some teenaged boy or girl just decided (s)he hated certain people and could trick them into thinking (s)he was of age, and went around serially duping people into committing statutory rape. How would the law handle this?

      • Ryan Davidson

        Again, as long as the sexual activity was consensual, deception on the part of the alleged victim is completely and totally irrelevant in terms of grounding a statutory rape conviction.

  17. Thanks a ton for answering this question, Ryan, I really appreciate it. It’s been bothering me for a while, and this is a really impressive and sensitive analysis.

  18. Say, what if somebody consents to being glamoured? If a glamoured person qualifies as mentally incapacitated, does that mean that their previous consent to this situation is null and void, or does their consent while mentally sound in full knowledge of what was going to happen still stand up in a court of law?

    • Just as Dr. Jekyl would be responsible for what Mr. Hyde did, if Dr. Jekyl knew before drinking the potion that Mr. Hyde would go and do something and that the only way Dr. Jekyl could prevent it would be not to transform into Mr. Hyde, so, too, would somebody who submitted to glamor be responsible for whatever the glamor made him do.

      Likewise, “But I was drunk, so I didn’t realize it was a bad idea to drive” is not a defense against the charge of drunk driving. You knew before you got drunk that you would be inhibiting your judgment.

      • Philo Pharynx

        Actually this brings me back to Dollhouse. Can you willfully enter into a contract that takes your free will away? Are you at all responsible if the Dollhouse has you do illegal things?

      • It’s a matter of “reasonable expectations.”

        If you willingly enter into a situation where your free will is to be taken away, you’re only “in the clear” for malfeasance you are compelled to perform if you had a very reasonable expectation that you would not be compelled to malefic performance.

        The second or later time you enter into the same agreement with the same person or organization, after knowing he’s or they’ve compelled you to do evil, you are effectively agreeing to perform unnamed evil for them. You are, at a minimum, an accessory to the crime at that point, because you knew it was likely and agreed to participate.

        Now, if you DO have reason to believe nothing illegal will be compelled from you, and something illegal is still performed, you can use that as a defense. A contract spelling out what you can be compelled to do, for instance, would be a legal defense if it were violated -and you had good faith reason to believe it would not be-. (I’m not a lawyer; I could be wrong here, but if I were a juror, I would certainly reason that somebody may have reason to trust the contract will be honored absent evidence to the contrary.)

        So, Dr. Jekyll should not be held responsible for what Mr. Hyde did the first time (except, POSSIBLY, in a ‘recklessness’ sense, depending on expectations and precautions held and taken). But, assuming he remembered what Mr. Hyde did, he could be held responsible for Mr. Hyde’s actions that were of a similar bent the NEXT time he took the potion, as he would have reason to expect Mr. Hyde to perform as he will.

        At that point, he is at LEAST an accessory to Mr. Hyde’s actions, if not an accomplice. He’s no different than the man who hands a gun to a killer he knows will go out and kill with it. (Not “suspects,” not “doesn’t know he won’t,” but “has every reason to believe he will.”)

      • I think there is a case to be made that Jekyll was culpable from the start. He seems quite explicit that he created the potion for the express purpose of transforming himself into an evil man who looked nothing like him, in order to go out and do immoral things for fun and get away with it. There is, in fact, an argument to be made that “Hyde” is really just Jekyll with a different face, and all his suggestions to the contrary are just him reaching for rationalizations, or maybe that Hyde is just Jekyll free of inhibitions. Either way, throughout the story, Jekyll’s concern never seems to be the horrible things Hyde does (most notably, trampling a young girl and, later, beating an old man to death); he is worried about getting exposed or caught, as either Jekyll or Hyde.

        In other words, Hyde is the evil side, but Jekyll is not by any stretch the “good” side and is in fact a selfish, amoral and egocentric man with a dark fantasy life whose sense of Right and Wrong is rooted entirely in his public image. Even the “good” Jekyll does is really just things like throwing dinner parties or otherwise making an effort to appear respectable- he never does a single thing out of charity or the warmth of his heart.

      • I will note that my exposure to Doctor Jekyll extends primarily to pop culture and the musical; I have not read the book. I cannot therefore comment cogently on the book’s plot. In the musical, however, while an argument could be made that Dr. Jekyll is an arrogant man who demonstrates bad judgment and may have had pride more than altruism motivating his experiments, it is undeniable that his motives were to “separate” the “good and evil” sides of man from each other with his potion. He felt he could “control and ultimately eliminate all evil from mankind” through this separation.

        From the monologue he gives (sings) in the musical immediately before and after imbibing the potion, he seems to expect to have whatever evil dwells within him suppressed by it in some way. At the very least, therefore, for the FIRST transformation, he could be excused from all save a charge of recklessness (and possibly “endangerment” associated thereto). He did not believe he would go out and commit crimes while under the effects.

  19. I have a question over interspecies romance: If a person have romantical and sexual relationship with a god/goddess, can that same person be arrested for Zoophilia? Even with the relationship was consensual and both parties know that they are from different species? (AKA: The deity didn’t tricked his/her partner by Ilusion/shapeshifting or used “mind control” to make him/her have a relationship with him/her: The deity explain right away the he/she is a supernatural entity and ask if the person want to date with him/her, and the person agree.)

    • It depends on the state statutes involved, but in many cases yes. The problem is that any intelligent non-human that isn’t clearly an intelligent plant or robot is probably an animal, legally-speaking. See this comment thread for more. (And FYI the crime is usually something like “crimes against nature” or “sexual misconduct”).

      • So, it seems that Jane Foster may get in some legal problems by dating Thor, both movie and comic book version! 😛

  20. Sorry, that emoticon wasn’t supposed to be so “Happy Looking”, it was to express a sentiment of “Oh Crap…” or irony…

  21. I read the comments and the article, and now i have one question: What would happen to Clark and Lois Lane child?

  22. Sorry to resurrect an old post, but this hypothetical caught my eye and I wanted to see if I could add my two cents to the subject. Many of the events of True Blood seem to happen in Bon Temps, Louisiana so it may be more appropriate to use Louisiana state law to analyze this situation. Louisiana law is broad in it’s definition of rape, but under the classification of “simple” rape includes instances when the victim is “intoxicated or otherwise cannot resist or understand the nature of her actions and the defendant knew or should have known that the victim was incapacitated.” This sounds similar to glamour in that the victim cannot resist the vampire’s influence or, as Mr. Davidson writes, “appraise” their actions. It is also evidenced that vampires also exercise awareness and conscious control of their ability to glamour. So it seems that a vampire using glamour to engage an unwilling victim in sex is in fact rape.
    If the vampire in question doesn’t want sex (at least sex as defined in Louisiana law) and just wants…maybe…second base with his glamoured victim, then that is sexual battery especially since the victim is made “incapable of resisting” by being under the effect of glamour.
    Mr. Davidson brings up really interesting points in his exploration of advocating a criminal case involving “glamour”. If we just take the facts as they are, however, we find that a vampire can indeed be found liable for rape and sexual battery by influencing a victim with glamour and subsequently engaging in sexual activities.

    • Terry Washington

      As always we would have to question whether vampires (or werewolves for that matter or any supernatural creature in “True Blood”) qualify as “persons” under the laws of the State of Louisiana or of the United States as a whole-first things first!
      Given the much talked about Vampire Rights Amendment, I would say “Yes!”


  23. You’re right on that one, Terry! I would think that the United States definitely has a legal interest in granting “personhood” to vampires not only to grant them necessary legal rights, but also to restrain their abilities and impulses so that they could peacefully co-exist with humans. I’m assuming the Vampire Rights Amendment would pass because…well, it would probably make life easier for everyone if the vampires weren’t pissed off.

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