The retrial begins today for Enock Arvizo, who is accused of raping a female inmate in a courthouse elevator. Jurors last month found Arvizo not guilty of one count of criminal sexual penetration, but they could not come to an agreement on a second count. This trial will focus on that charge alone.
Prosecutors argue that an inmate is under nearly total control of the guard and can’t meaningfully consent to sex because of that power disparity. They say a question about whether the sex was consensual should not be placed before the jury.
But Arvizo’s defense attorney argues that nothing in the law indicates that an inmate cannot give lawful consent and jurors should be left to decide if the inmate consented.
In Arvizo’s first trial, jurors were instructed to consider whether the alleged act was part of jail procedure and whether it was “done without consent.” But in a brief filed early this month, prosecutors with the state Attorney General’s Office asked the judge to omit that instruction.
Prosecutors point to a 2016 civil case in which Supreme Court justices wrote that the relationship between guards and inmates is “oriented around captivity and control” and that the power disparity is such that “meaningful voluntary consent to sexual intercourse” is “an unrealistic inquiry.”
The jury instruction at issue, prosecutors said, “would do nothing but confuse the jury, as it did in the first trial.” They noted that jurors asked during deliberations whether there was any legal possibility that an inmate could consent to sex.
Arvizo’s defense attorney Stephen Lane said there are only two types of rape cases he has identified in which victims are “statutorily incapable of giving consent.”
Those are cases with child victims and cases where a patient is victimized by a psychotherapist. He said case law indicates that there has to be a statute declaring a class of persons incapable of consenting.
“There’s nothing of that sort for inmates,” he said. “Nothing in the black letter law.”
Lane said that failing to instruct the jury to consider consent would constitute “fundamental error.”
He said that when prosecutors indicted Arvizo, they read the instructions dealing with consent to grand jurors and he questioned why prosecutors are now opposed to including a question about consent.
A spokesman for the Attorney General’s Office said he could not comment on the issue as it is pending before the court. It’s unclear when Judge Briana Zamora will determine whether the jury will hear the unlawfulness instruction.
In addition to the allegations involving this woman, Arvizo is facing trial on charges that he raped a second inmate and assaulted a third.