ALBUQUERQUE, N.M. — A District Court judge has released jurors in a retrial against a county jail guard accused of raping a female inmate.
Enock Arvizo was set to go to trial Monday on one count of criminal sexual penetration. The trial was rescheduled for mid-September to allow the court to deal with a question raised earlier this month by prosecutors dealing with whether an inmate can consent to sex with a corrections officer.
Judge Briana Zamora said she planned to issue a written order addressing a request by prosecutors to omit an instruction that deals with consent.
The state Attorney General’s Office is prosecuting the case and said in court Monday that depending on the judge’s order, they could take the issue to the Supreme Court. They argued that because an inmate is under nearly total control of a corrections officer, meaningful consent is impossible. They said a question of whether the act was consensual should not go before jurors.
But Arvizo’s defense attorney argued that nothing in the law says that an inmate cannot consent to sex and that jurors should be left to determine whether the encounter was consensual.