People v. Cratsley

• Decision Date: 05 July 1995
• Citation: 653 N.E.2d 1162,629 N.Y.S.2d 992,86 N.Y.2d 81
• Parties: , 653 N.E.2d 1162 The PEOPLE of the State of New York, Respondent, v. Stanley G. CRATSLEY, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 992

629 N.Y.S.2d 992

86 N.Y.2d 81, 653 N.E.2d 1162

The PEOPLE of the State of New York, Respondent, v. Stanley G. CRATSLEY, Appellant.

Court of Appeals of New York.

July 5, 1995.

[86 N.Y.2d 82] [653 N.E.2d 1163] Michael J. Hutter and Allen Redlich, Albany, for appellant.

[86 N.Y.2d 83] James T. Hayden, Dist. Atty. of Chemung County, Elmira, for respondent.

OPINION OF THE COURT

KAYE, Chief Judge.

Defendant was charged with rape in the third degree (Penal Law § 130.25[1] after he admitted to having sexual intercourse with a 33-year-old woman whom he knew to have mental retardation. The sole issue at trial was whether she was legally incapable of consent. ¹ While this remains the central question on appeal, an additional issue before us concerns the business records rule.

Complainant, Sherry K., was an employee of the Steuben Association of Retarded Citizens (ARC), a sheltered workshop that provided opportunity and support for adults who are mentally retarded. One Monday morning in July 1991, she told her counselors--in accordance with her instruction on responding to sexual abuse--that she and defendant had engaged in sexual intercourse the previous weekend. In her own words, defendant had asked her to pull down her pants and, although she told him "don't do no more," he "put his go potty thing" inside her. Upon questioning, defendant, who was a cousin of Sherry K.'s stepfather, admitted the encounter, but insisted it was at her instigation and with her consent. ²

According to testimony from her mother and stepfather, complainant had suffered brain damage at birth. She lived in an apartment attached to her parents' home, but was unable to cook for herself, handle money, perform anything other than repetitive tasks or cope with variation from her daily routine. She had a steady boyfriend with whom she went out to eat and visit acquaintances in the supervised community where he lived.

Found not capable of comprehending the nature of the oath, Sherry K. gave unsworn testimony. As her testimony revealed, she could not spell her last name or correctly state her age. While she knew the purpose of the birth control pills prescribed for her was to prevent pregnancy, she did not know what pregnancy was, or "where babies come from," and did not know about venereal disease.

Linda Kent, complainant's counselor at ARC, had advanced training in vocational habilitation of adults with mental retardation and worked intensively with the ARC employees to assist them in succeeding at employment. In complainant's case, Kent reviewed her programs twice yearly, and helped her formulate developmental goals. Kent assisted her in managing her money, and counselled her about personal problems, seeing her at least twice a day at the center. Over defense counsel's objection, the prosecutor elicited testimony from Kent establishing that a clinical report contained in Sherry K.'s ARC file showed her IQ to be 50. That result, according to Kent, placed her on "the high end of the moderately retarded" range, the type of person admitted to ARC. Kent's work was limited to persons with IQs above 50, persons who are "trainable," and she was very familiar with this range of functioning.

Within the ambit of the training given to Sherry K. through ARC was education in recognizing and preventing sexual abuse. She had been told she had the right to say "no" to any conduct that made her uncomfortable, whether at home, in the community or in the workshop. She had been instructed to report immediately any touching of her body. Over defense counsel's objection that Kent lacked expertise in determining capacity to consent to sexual intercourse, Kent was allowed to testify that complainant did not appreciate the connection between intercourse and pregnancy. Kent had asked Sherry K., on two occasions, whether she understood this connection, and both times she made clear that she did not.

The court delivered a charge based on Criminal Jury Instructions (2 CJI[NY] PL 130.25), directing that the complainant should be found unable to consent to sexual intercourse if she was "so mentally defective as to be incapable of appraising the nature of her conduct," and setting forth factors relevant to that determination. Defendant was convicted of rape in the third degree and sentenced to an indeterminate term of imprisonment.

On appeal, defendant contends that Kent was wrongly allowed to give "expert testimony" about the complainant's mental capacity, and that in the absence of expert testimony on that question, the evidence was insufficient to establish defendant's guilt. Defendant also argues that receipt into evidence of the psychologist's report--which the Appellate Division found to be error, but harmless--required reversal. We now affirm.

I

"Mental retardation" is not a disease, disorder or disability, but a less-than-satisfactory administrative term used to identify the condition of a broad spectrum of people whose common trait is inadequate cognitive ability to meet the demands of society (Hayman, Presumptions of Justice: Law, Politics, and the Mentally Retarded Parent, 103 Harv.L.Rev. 1202, 1213, 1248, n. 249). Such an impairment may arise from any number of causes, including birth defect, head injury, disease and environmental factors, conditions leading to no common symptomatology in physiology, psychology, intellect or affect (id., at 1214). Mental retardation is not necessarily a static condition, for experience has shown that with effective training and support, individuals are able to lead increasingly "normal" lives (Christian, Normalization as a Goal: The Americans with Disabilities Act and Individuals with Mental Retardation, 73 Tex.L.Rev. 409, 413).

Our jurisprudence recognizes certain limitations on the ability of a legally incapacitated person to consent to participate in sexual relations. That limitation is an exercise of the State's parens patriae interest, invoked only where the individual is deemed unable to make a competent decision concerning a fundamental right (see, Rivers v. Katz, 67 N.Y.2d 485, 496, 504 N.Y.S.2d 74, 495 N.E.2d 337).

Under New York law, it is an element of every sex offense that the sexual act was committed without the consent of the victim (Penal Law § 130.05[1]. Where a person is legally incapacitated, the law does not recognize any claim that the person "consented" to sex and criminalizes sexual intercourse with that person (Penal Law § 130.05[2][b].

The burden the People must meet to establish legal incapacity is a high one. Under the statutory scheme, the People must prove case-by-case that a victim's functioning is so impaired as to be "mentally defective" (Penal Law § 130.05[2][b]. By that standard, the victim must suffer "from a mental disease or defect which renders him incapable of appraising the nature of his conduct" (Penal Law § 130.00[5]. The law does not presume that a person with mental retardation is unable to consent to sexual intercourse (Penal Law § 130.25[1], and proof of incapacity must come from facts other than mental retardation alone. ³

This Court considered application of these standards in People v. Easley, 42 N.Y.2d 50, 54-55, 396 N.Y.S.2d 635, 364 N.E.2d 1328, and declined to "adopt the fiction that all persons are mentally or judgmentally equal." We took care to note that (supra, at 54-55, 396 N.Y.S.2d 635, 364 N.E.2d 1328):

"[a]s do all others, the mentally aberrant differ from one another in greater or lesser degree. Even mental retardation does not mean that an individual is incapable of consenting as a matter of law. The requisite degree of intelligence necessary to give consent may be found to exist in a person of very limited intellect (see 1 Wharton, Criminal Law and Procedure, § 310; Hacker v. State, 73 Okla.Cr. 119 [118 P.2d 408 (1941) ]. Crucial to a determination may be how such a person actually functions in society (Lindman, Mentally Disabled and the Law [American Bar Foundation, rev ed], p 226)."

In Easley, we discussed what it meant to be incapable of appraising the nature of one's own sexual conduct (see, 42 N.Y.2d, at 55-58, 396 N.Y.S.2d 635, 364 N.E.2d 1328). Understanding the "nature" of one's sexual conduct implicates a range of human responses, only a part of which is intellectual. We noted that care must be taken not to restrict the freedom of persons with mental retardation who are capable of knowing consent to a sexual relationship by confusing deliberate failure to adhere to a particular set of values with lack of understanding that values exist. Only the latter--a lack of understanding--is an appropriate consideration in assessing legal capacity.

Defendant does not quarrel with this legal standard, but urges that the People cannot meet their burden under Easley without presenting some admissible expert testimony as to a complainant's capacity to consent, testimony that he argues is absent in this case.

As we noted in Rivers v. Katz, however, determination of capacity is a judicial, not a medical, function (67 N.Y.2d at 496, 504 N.Y.S.2d 74, 495 N.E.2d 337). The question whether a person possesses sufficient resources--intellectual, emotional, social, psychological--to determine whether to participate in sexual contact with another is an assessment within the ken of the average juror, who likely has made the same determination at some point. ⁴ We concluded in Easley that this assessment is best based on evidence concerning the victim's ability to function in society (42 N.Y.2d, at 55, 396 N.Y.S.2d 635, 364 N.E.2d 1328). People who observe the complainant daily--family members, teachers, employers--are often most familiar with his or her capacity to cope with challenge and can illuminate for the jury the complainant's ability to understand and cope with a sexual encounter.

Here, just such evidence was presented through the testimony of Sherry K. herself, as well as that of her parents and counselor, and it was sufficient for the...