Observe & Report

Observe & Report (2009)

Facts: Ronnie Barnhardt, head of security at a local mall, has made several attempts to go out on a date with mall shop girl, Brandi. After Brandi is the victim of a flasher, Barnhardt escorts Brandi back to her vehicle in the mall parking lot. He asks Brandi out on a date and while initially hesitant, she ultimately agrees.

When Ronnie picks up Brandi at home, Brandi has already been drinking. They go to a bar where Brandi consumes two more drinks and four shots of tequila. Upon request, Ronnie also gives Brandi his bottle of medication used to treat his bipolar condition. Brandi takes three pills.

By the time Ronnie returns Brandi home, she is severely intoxicated and Ronnie has to help Brandi into her house. Brandi vomits and Ronnie kisses her. Eventually the two engage in sexual intercourse even though Brandi vomits again and is unresponsive. During the act, Ronnie asks if he should continue and Brandi mumbles, "Why are you stopping, motherf---er?" They complete the sexual act and Ronnie goes home. The next day Brandi says nothing about the night to Ronnie.

Issue: Did Ronnie rape Brandi?

Law: A rape is the nonconsensual sexual intercourse between a man and a woman. Consent can be negated if the woman is unable to give consent due to a physical or mental impairment. Similarly, consent can be negated if the man uses force or fraud to obtain consent.

Analysis: Most likely yes. Because it is clear they had intercourse, the real issue here, as with most acquaintance rape (or "date rape") is over whether Brandi consented to sex with Ronnie. Due to her severe intoxication--as evidenced by her vomiting, flashes of consciousness, and inability to walk on her own, she likely could not form the necessary consent.

Ronnie could argue that he believed she consented to sex--as seen in her reaction when Ronnie stopped the sexual act; however, it was likely unreasonable for him to believe she could consent to sex with him because he was well-aware of her diminished capacity. (This defense is called "mistake of fact," but it is unavailable in the case of rape if the mistake is unreasonable.) Ronnie's case is also weak because he purchased the alcohol for Brandi, he gave her his prescription drugs (a federal crime all on its own), and he has a history of sexual interest in Brandi.

Bonus: This scene caused generated some controversy because of the apparent rape of Brandi. Here's an ABC News article about the debate. And here's my take on this film: even without this scene, it was still pretty lousy.