Judge Confused about Ability of 7- and 19-year-olds to Give Consent

By Lovepreet Dhinsa and Jaycee Horng

RIVERSIDE – Before the jury came to a verdict in defendant Jose Ivan Dominguez’s rape and attempted kidnapping case, Judge Dean Benjamini and counsel met to discuss jury instructions.

Dominguez allegedly raped, assaulted, and attempted to kidnap his brother’s 7-year-old daughter and 19-year-old daughter in their own home on separate occasions.

The jury heard various witness testimonies from the mother, the two children (aged 7 and 19), the brothers, a DNA expert, and the defendant himself.

The four issues discussed for jury instructions included: the withdrawal of consent halfway into the incident, the issue of “simple kidnapping,” bodily injury/harm, and voluntary intoxication.

According to witness testimony, members of the family stated that the defendant allegedly made verbal threats at the dinner table.

Because the defendant allegedly raped the two victims, Judge Benjamin ruled that the prosecution team must prove that the defendant had intended to commit the crime and willfully participated against both children’s wills.

The judge ascertained that the intentions of these “lewd and lascivious acts” must be proved, in that the defendant intended to touch the child’s body and commit those acts.

The prosecution argued that a 7-year-old was an “unresisting infant child,” where an infant child could not have struggled and resisted against a grown man to prevent kidnapping.

In addition, the prosecution argued that the children simply could not consent, and that it is important for the court to take into consideration their developmental capacities and whether they would be physically able to resist at that point.

The 19 year old victim testified that she initially consented to going to the car with the defendant, however she was later seen resisting against the defendant.

For the 7-year-old, the judge believed that there was some confusion about which individual led the other down the hallway toward the bathroom, despite several witnesses testifying that they heard the defendant drag and pull the 7-year-old by her hair into the bathroom.

According to the judge, his confusion about who led whom into the bathroom caused him to further claim that consent could have been withdrawn halfway into the act, when she was pushed into the bathroom.

Regardless of this, the prosecution argued that, at 7 years old, the child could not conceptualize what consent is and could not articulate it, as she did not know the nature of the act.

The defense agreed that mental capacity is an important factor, as when someone is heavily intoxicated, and argued that the defendant was intoxicated at the time the 7-year-old was taken out of her bed, and therefore he was not in control of his actions.

The defense further argued that, in this incident, both individuals resisted, and “if they are young enough to resist, they are young enough to consent.”

After this statement, the court became silent for a few moments before the prosecution team argued that the court has an infant who cannot resist nor consent. According to the prosecution, “we know that the 7-year-old did not consent, as the defendant had used his hand to pinch her nose and force her.”

Despite this, the defense persisted that “the absolute best-case scenario was that [the defendant] asked her where the bathroom was, and he took her to the bathroom without the intent to unlawfully harm her.”

Furthermore, the defense argued that, while the 7-year-old may not have been fully aware of what the defendant might have been up to, the 19-year-old was more likely to be aware of what was happening. This brought into question whether the 19-year-old was closer to infancy or adult age and her developmental abilities.

When the prosecution countered that the 19-year-old clearly showed resistance against the defendant and that the 7-year-old had her nose pinched and her hair pulled in the middle of the night, the judge claimed that “it all comes down to his [the defendant’s] belief of consent and what he thought he was doing.”

Upon hearing both sides, Judge Benjamini believed that the matter of consent would not hold up in front of the jury as the hands of 7-year-old were on the door frame when she was forcefully pushed inside of the bathroom by the defendant, but he still wanted to consider whether there was a “distinction between coming down the hallway where she could have chosen not to resist and then manifest a desire to withdraw her consent halfway to the bathroom.”

The judge concluded that the children did not have the maturity level at that moment to consent.

Judge Benjamini ruled that, while the victims could not consent, this case is not a sex offense and the defendant would not be registered as a sex offender, despite the severity of the charges.

Lovepreet Dhinsa is a junior undergraduate student at the University of San Francisco, pursuing her bachelor’s degree in Politics with a minor in Legal Studies. She has a passion for criminal defense law, and strives to go to law school to fight for indigent clients. As such, she is also involved in her university’s mock trial program and student government.

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