Monday, April 7, 2014
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C.A. Revives Charges in Craigslist Rape Solicitation Case
Divided Panel Says Evidence Sufficient to Try Woman Who Admitted Bid for Revenge
By KENNETH OFGANG, Staff Writer
The Fourth District Court of Appeal Friday reinstated charges of soliciting rape and sodomy against a San Diego woman accused of placing a Craigslist ad seeking a sexual assault against a woman she allegedly was harassing online.
In a 2-1 decision, Div. One said there was sufficient evidence of criminal intent to try Kathy J. Rowe, contrary to the prior rulings of two San Diego Superior Court judges. Rowe allegedly posed online as her intended victim, seeking out men to participate in a “rape fetish.”
Placing the ad was allegedly part of a nine-month pattern of harassment, motivated by the fact that the victim and her husband outbid Rowe for the purchase of a home.
At Rowe’s preliminary hearing, prosecutors presented evidence of the ad, entitled “Carmel Valley Freak Show,” containing explicit descriptions of activity that the woman was willing to engage in while her husband was not at home. They also presented Rowe’s responses to two men who answered the ad, including one saying the woman was “pretty much home all day every day, bored and incredibly horny” and willing to engage in anal sex.
One man said he went to the woman’s home prepared to engage in sexual activity, but made up an excuse and left when her husband came to the door. When the man sent an email explaining what had happened, Rowe sent him an assurance that there would be no spousal interference if he returned to have sex.
Harassment Admitted
Police who interviewed Rowe said she initially denied placing the ad or engaging in other acts of harassment, which included listing the victim’s home for sale; putting a hold on her family’s mail; having over $1,000 worth of unsolicited magazines, books, and junk mail sent to the home; sending Valentine’s Day cards from the victim’s husband to the wives of the victim’s neighbors; having a county assessor’s office employee contact the victim and her husband about reassessing their home; having members of religious groups visit the home; posting an online announcement for a teenage party at the home; and posting an online announcement for a free fireworks giveaway at the home on Independence Day.
Rowe eventually admitted the “pranks,” as she called them, but denied she intended to harm anyone. In addition to the sex counts, she was charged with harassment and identity theft; those charges were not involved with Friday’s appeal.
The preliminary hearing magistrate, San Diego Superior Court Judge Runston Maino, determined there was insufficient evidence to bind Rowe over for trial on the sex charges. He reasoned that there was no proof Rowe intended to have anyone rape the victim, and that the men intended to have consensual sex, not commit a crime.
Superior Court Judge Joan Weber denied the prosecution’s motion to reinstate the charges, finding the charged crimes were a legal impossibility because Rowe invited the men to engage in and the men believed they would be engaging in consensual sexual activity.
Majority Opinion
But Presiding Justice Judith McConnell, writing for the Court of Appeal, said Rowe should stand trial because a rational trier of fact might conclude that Rowe’s posting and reply messages constituted requests to commit rape and sodomy and that Rowe intended those crimes to be committed.
The issue, McConnell explained, is not whether the men perceived Rowe’s communications as requests to commit crimes, but whether crimes would have been committed had the men done what Rowe asked them to do.
“We reach this conclusion because the crime of solicitation focuses on the intention and action of the solicitor, not the solicitee,” the presiding justice explained.
McConnell distinguished California’s solicitation statute, Penal Code §653f, from the analogous Model Penal Code provision, under which requesting an innocent agent to commit a crime does not constitute a solicitation.
California, she wrote, instead follows the “more modern” view, laid out in criminal law treatises, that “a defendant possessing the requisite intent may be charged with solicitation even when the solicitee is immune, is unaware is criminally irresponsible or immune to prosecution; is unaware of the criminal nature of the conduct solicited or of the defendant’s criminal purpose; or is for some other reason incapable of entertaining the mental state required for the commission of the offense solicited.”
Justice Judith Haller joined in the opinion, while Justice Alex McDonald dissented.
McDonald argued that the majority was being insufficiently deferential to the magistrate, whose ruling he said was supported by the record.
He reasoned:
“…[O]f the numerous solicitations made by the defendant to G.M. or J.M. all were for voluntary, consensual sex, none were for forcible sex. The only arguable variation on the solicitation for voluntary sex were statements defendant commented to J.M. that in the context of a meeting for consensual sex, J.M. could pick a time to surprise her, force the door and appreciate it if she said ‘no’: In this context, these comments suggesting force could not be considered other than attributes of consensual sex that would make consensual sex more exciting.”
The case is People v. Rowe, 14 S.O.S. 1727.
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