Illinois v. Mpulamasaka (2016)
by David S. Marshall
An appellate court in Illinois has reversed a conviction for Aggravated Criminal Sexual Assault. The defendant successfully argued that the prosecutor did not prove guilt beyond a reasonable doubt and that the prosecutor committed serious misconduct during trial.
After a sexual encounter that caused major injuries to the complaining witness, S.B., the state charged Mpulamasaka with aggravated criminal sexual assault.
Under Illinois law, a person is guilty of Sexual Assault if he or she commits sexual penetration and uses force. “Force” means violence, such as where the accused has overcome the victim by superior strength and size. The assault is “aggravated” if the perpetrator causes injury to the victim. The defendant can defend by showing that the complainant consented to the act.
In cases, like Mpulamasaka’s, where the defendant presents evidence that the complainant consented, the state must prove lack of consent beyond a reasonable doubt.
Illinois’s crime of Sexual Assault is similar to the three degrees of Rape defined in Washington State’s law. Even Rape in the Third Degree, the least serious form of rape under Washington law, requires either force or lack of consent. And if genuine force was used (as opposed to simulated force—rough sex chosen by both parties), there was no consent.
So in Washington, too, the state must prove beyond a reasonable doubt that the complainant did not consent to the sexual act.
A jury convicted Mpulamasaka, and he appealed. He argued that the state did not prove beyond a reasonable doubt that he used force or that S.B. did not consent.
At trial, S.B. gave conflicting testimony. On direct examination, she testified that the defendant flipped her legs over from the front seat of her car to the back seat, where the defendant then penetrated her when she did not want him to.
However, on cross-examination, S.B. testified that she “straddled” the defendant in the car and switched positions when it became uncomfortable. This tended to show that the defendant might not have forced himself onto her. The court found that S.B.’s testimony was consistent with the defendant’s argument that S.B. consented, so the state had to prove lack of consent.
The prosecution presented evidence that S.B. had a learning disability and had the mental and emotional capacity of a child rather than a 41-year-old adult. Thus, the prosecutor argued, she could not give legally-valid consent. And that, the prosecutor contended, meant the defendant used force against her.
The appellate court rejected that argument. It ruled that the evidence of a learning disability did not prove lack of consent or force.
The court also noted that the state did not present evidence of the defendant’s size compared to the complainant’s. That would have been crucial to show force. In fact, there was evidence that S.B. was taller and larger than the defendant.
Other evidence included conflicting testimony from two doctors. The doctor for the state, Dr. Holt, testified that the injuries to S.B.’s vagina were likely not due to consensual intercourse. However, the doctor for the defense testified that the injuries were very possibly caused by consensual sex.
Dr. Holt based her opinion on her experience treating vaginal injuries. However, the court held that Dr. Holt did not have enough information to opine on whether the injuries occurred due to sexual assault and that her opinions were mere speculation.
The court also reversed the conviction due to prosecutorial misconduct. In most jurisdictions, including Washington State, criminal convictions can be overturned if the prosecutor uses tactics that inflame the jury or otherwise unfairly prejudice the defendant.
Here, the prosecutor called the defendant a “predator” during closing argument and delivered his closing argument from the witness stand.
The prosecutor also made an argument that violated Mpulamasaka’s right to confront witnesses. He argued that S.B.’s answers to “yes-or-no” questions on cross-examination were not “in her own words” and thus should be ignored.
Under the Sixth Amendment to the U.S. Constitution and the constitutions of Washington and many other states, defendants have the right to confront the witnesses against them. The most important part of this right is the right to cross-examine adverse witnesses, and the time-honored way to do that is via leading questions, that is, yes-or-no questions. Here, the prosecutor asked the jury to ignore evidence presented in defense of Mpulamasaka because it was elicited in this way.