Memorandum

To: Senior Partner

From: Associate Michael J. Bootsma

RE: People v. John Steed, No. 02-0202

Date: November 5, 2002

Questions Presented

I.   Will John Steed be able to use non-self-induced intoxication as a defense to the charges of hazing and statutory rape?

II.  Can John Steed succeed with self-induced intoxication as a defense to the charges of hazing or statutory rape?

Short Answers

I.   No. The statements of other Pep Boys indicate that John Steed should have known that he was drinking alcoholic wine, and therefore 

      he will not  be able to claim that his intoxication was non-self-induced.

II.  No.  Steed cannot prove that his intoxication caused him to act recklessly the night of the initiation, so he will not be able succeed 

     with the defense of self-induced intoxication

  Facts

            Our client, John Steed, is a member of the Pep Boys cheerleading group at Who University, in Who State.  On August 31, 2002, at the annual initiation for new members, Steed was paired with Emma Peale, a petite, sixteen-year-old applicant.  During the initiation, Peale and Steed each drank six bottles of wine.  At no time during the night of the ceremony did Steed think about the possible health effects associated with Peale drinking six bottles of wine.  However, doctors have stated that the drinking posed a serious risk to her health.  Later that night Peale persuaded Steed to walk her home, where at her urging they engaged in consensual sexual intercourse.   Steed says that he knew what he was doing, but it did not occur to him that having intercourse with Peale was illegal.

Steed has stated that he thought the wine they were drinking was non-alcoholic.  Hans and Franz, two Pep Boys who were present when Steed requested the case of non-alcoholic wine, have stated that they think Steed knew the wine contained alcohol, because the conversation in which he requested the non-alcoholic wine, was a joke in their opinion. Furthermore, four other teammates gave statements that Steed had been drunk at previous initiations and that it would be unheard of for a Pep Boy not to get drunk at an initiation.  “Two, four, six, eight / we like to intoxicate” has been reported as the unofficial motto of the initiation.

A grand jury has charged Steed with hazing and non-aggravated statutory rape under the Criminal Code of Who State. The district attorney has offered to drop the charge of non-aggravated statutory rape if Steed will plead guilty to hazing.

S.C.C. §802

(1) ….[I]ntoxication of the actor is not a defense unless it negatives an element of the offense.

 (3) Intoxication that (a) is not self-induced or (b) is pathological is a defense if by reason of such intoxication the actor at the time of

 his conduct lacks substantial capacity either to appreciate its criminality or to conform his conduct to the requirements of the law

(4) The defenses of non-self induced or pathological intoxication defined in Subsection 3 are affirmative [defenses].

(5)(b) “self-induced intoxication” means intoxication caused by substances which the actor knowingly introduces into his body, the tendency

of which to cause intoxication he or she knows or ought to [know.]

Discussion

            This memorandum will examine the possibility of Steed using intoxication as a defense to the charges of hazing and statutory rape.  First, it will discuss the defense that his intoxication was non-self-induced, which is an affirmative defense and could result in Steed being found not guilty on both charges.  Second, it will discuss the defense of self-induced intoxication, which under the State Criminal Code can only be used as a defense to hazing. 

I.  NON-SELF-INDUCED INTOXICATION

            Steed will not succeed with non-self-induced intoxication as a defense to either charge.  Under section S.C.C. §802 (4), he must prove by a preponderance of the evidence that his intoxication was not self-induced.  The problem with this case is that the definition of self-induced intoxication in S.C.C. §802(5)b includes the phrase “or ought to [know.]”  This means the defense of non-self-induced intoxication is not applicable if the actor should have known that he was becoming intoxicated, because under the code his intoxication by definition is self-induced.  Steed claims he thought he was drinking non-alcoholic wine.  However, the statements of Hans and Franz, that the conversation about non-alcoholic wine was a joke, will be enough to show that Steed may have known or should have known that the wine was alcoholic.  Even more damaging are the statements made by other Pep Boys that Steed had been drunk at previous initiations and that Pep Boys are always drunk at these initiations.  The statements of Steed’s teammates will keep him from proving by a preponderance of the evidence that his intoxication was non-self-induced, especially considering the fact that his teamates have almost no incentive to lie.

            Even if f Steed could prove his intoxication was non-self induced, he would also need to prove by a preponderance of the evidence that he was unable to appreciate the criminality of his acts or conform his acts to the law.  S.C.C. §802(3).  In order prove that he could not conform his actions, Steed would need proof that due to his intoxication, he could not control his actions.  In regards to the charge of statutory rape, Steed has stated that he knew what he was doing when he had intercourse with Peale, but that it did not occur to him that it was illegal.  He has also stated that he did not think about the possibility that excessive drinking could result in harm to Peale.  These facts do not prove that Steed was unable to conform his acts or appreciate their criminality; they only shows that he did not contemplate the illegality of his acts.  Therefore, Steed cannot prevail with non-self-induced intoxication as a defense. 

II.  SELF- INDUCED INTOXICATION

            Based on the culpability requirements for hazing and statutory rape, self-induced intoxication can be a defense to hazing, but not to statutory rape.  The reason is that self-induced intoxication can only be used to negate a mens rea element and the code states that statutory rape is a strict liability offense, which means that it has no required mens rea element.   In contrast, the hazing statute fails to specify a level of culpability.  When a statute fails to specify a mens rea element, then “recklessness” is the default culpability. S.C.C §202 (3).  Therefore, if Who State allows for self-induced intoxication to negate recklessness, Steed may be able to contest the charge of hazing.   

    There is no case law based on the S.C.C in Who State that addresses the issue of self-induced intoxication, but it seems that Who State did not want to rule out self-induced intoxication as a defense to negate recklessness.  This conclusion is based on the fact that when Who State adopted the M.P.C as their Criminal Code they did not adopt M.P.C. §2.08(2), which states that recklessness cannot be negated by self-induced intoxication. 

            Even if Who State allows Steed to use self-induced intoxication to negate recklessness, he will not succeed because he cannot prove that the alcohol caused him to act recklessly.  Based on the definitions of recklessness and hazing, Steed’s actions were reckless if he consciously disregarded the risk of endangering a student’s health during an initiation to a University club.  S.C.C. §202(C), S.C.C §1505.  The motto of the club, “Two, four, six, eight / we like to intoxicate”, implies that the purpose of the initiation was to drink until intoxicated.  In addition, four Pep Boys have stated that Steed was intoxicated at previous ceremonies.  This makes it appear that Steed had disregarded certain risks even before he became intoxicated that night.  Moreover, Steed claims that he did not think about the possible health effects to Peale during the initiation, but Peale’s size and weight along with the purpose of the ceremony should have made the possible health risks apparent to him.  The fact not that Steed did not “think” about the risks involved with Peale’s excessive drinking does not matter.  Steed needs to prove that he disregarded the risks involved in the hazing charge because he was intoxicated.  Therefore, testimony of Steed’s teammates coupled with Steed’s prior experience of drinking at initiations will keep Steed from using self-induced intoxication to negate the mens rea requirement of recklessness. 

Conclusion

            Steed should take the plea bargain and plead guilty to hazing.  A trial would most likely result in Steed being convicted of both hazing and statutory rape.   Technically, even if Steed could prove that his intoxication was non-self-induced, there is no reported case under the Model Penal Code in which the defense was successfully used. M.P.C. §2.08, cmt. 1, nt. 40 p.[15] (1985).  The reason is that juries do not buy the idea that a defendant’s intoxication was not his own doing.  Steed may be able to contest the charge of hazing with a defense of self-induced intoxication, but the probability of his prevailing on this defense is minuscule.  Therefore, I recommend that Steed take the plea bargain.