The New York Criminal Law Blog

Hudson River Park Rapist Pioneers the Four Loko Defense

Jonathan Stewart is a rapist, and perhaps, a legal pioneer. Not just an alleged rapist, mind you, but someone who has already served seven years in a Virginia prison for robbery and sexual assault of a relative. Last month, he was arrested again for allegedly raping an a 21-year-old actress in Hudson River Park, reports the New York Post.

He’s also very confused. At the time of his arrest, he asked the cops, “Did I do something wrong?” Subsequent statements by Stewart indicate that he’s probably aiming for the intoxication defense. He claims that he had four or five Four Lokos, plus Grey Goose vodka, weed and K2. That’s a hell of a combo.

No matter how drunk and high he may have been, however, that won't get him completely off the hook. For one, New York Penal Code Section 15.25 states that intoxication is not a defense to a crime but it may negate the criminal intent element of a crime.

Okay, so perhaps he might be able to weasel out of some of the more severe charges. Let's go to the court cases.

In 2007, People v. Newton was decided by the Court of Appeals for New York State. In that case, the court held that at least for lesser degrees of sodomy (referred to in the statute as "criminal sexual acts") the defendant's mental state is not important.

"[T]he proper inquiry for the factfinder is not whether a defendant actually perceives a lack of consent, but whether the victim, by words or actions, clearly expresses an unwillingness to engage in the sexual act in such a way that a neutral observer would have understood that the victim was not consenting."

The court's interpretation makes sense under the language of the statute, which makes it a felony to engage in oral or anal sexual conduct "with another person without such person's consent ..." The statute only mentions the victim's consent, not the intent of the attacker.

However, intoxication might present a defense to first degree charges. Though the first degree charge does not mention intent explicitly, another New York case previously stated that intent is implicit in the forcible element of both sodomy and first degree rape. If he was too intoxicated to form the requisite intent, he cannot be convicted of the more severe first degree charge.

In other words, the Four Loko defense might actually work. It won't mean he'll walk, but it might mean that he gets a significantly lesser sentence. Then again, someone should explain to the jury (and Stewart) that Four Loko is now simply watered down malt liquor, as they removed the caffeine back in early 2011.

Related Resources: