NCJ Number
31539
Journal
Southern California Law Review Volume: 49 Issue: 1 Dated: (NOVEMBER 1975) Pages: 110-152
Date Published
1975
Length
43 pages
Annotation
THIS ARTICLE EXPLORES THE IMPLICATIONS OF ALLOWING A JUSTIFICATORY DEFENSE TO A PRISONER WHO ESCAPES UNDER THE THREAT OF IMMINENT HOMOSEXUAL ASSAULT.
Abstract
THE CONCEPTUAL DISTINCTIONS BETWEEN DURESS AND NECESSITY AND JUSTIFICATION AND EXCUSE ARE CLARIFIED. PERTINENT CASE LAW IS EXAMINED, WITH PARTICULAR EMPHASIS BEING GIVEN TO THE 1974 CASE OF PEOPLE V. LOVERCAMP, IN WHICH THE CALIFORNIA COURT OF APPEAL FOR THE FOURTH DISTRICT BECAME THE FIRST APPELLATE COURT TO HOLD THAT A PRISON ESCAPE INDUCED BY THREATENED IMMINENT HOMOSEXUAL ASSAULT BY OTHER INMATES MAY BE JUSTIFIED AS A MATTER OF NECESSITY. AN EXAMINATION OF THE CONSEQUENCES OF THIS 'RIGHT' TO ESCAPE ANALYZES THE EXTENT TO WHICH THIS RIGHT IMPLIES A CORRESPONDING 'DUTY' IN THE STATE NOT TO INTERFERE WITH THE ESCAPE, OR TO ACTUALLY SEE THAT IT IS ACCOMPLISHED IN THE SENSE OF INSURING THE INMATE FUTURE CONFINEMENT FREE FROM ASSAULT. THE LOGICAL EXTENSIONS OF LOVERCAMP ARE EXAMINED AND ITS IMPLICATIONS APPLIED TO CASES EXPECTED TO ARISE IN THE FUTURE. IT IS ARGUED THAT LOVERCAMP DOES SIGNIFICANTLY AFFECT THE RELATIONSHIP EXISTING BETWEEN THE ASSAULTED INMATE AND THE STATE AND SHOULD LEAD TO FURTHER JUDICIAL RECOGNITION OF SUCH PRISONER'S RIGHT TO INCARCERATION FREE FROM PHYSICAL ASSAULT. THE AUTHOR CONCLUDES THAT LOVERCAMP CREATES A NEW RULE WHICH SUPPORTS A RIGHT TO DIRECT JUDICIAL REMEDIES FOR INMATES THREATENED WITH HOMOSEXUAL ASSAULT. HE SUGGESTS THE USE OF THE PETITION FOR A WRIT OF HABEAS CORPUS TO ENFORCE THE RIGHT OF ESCAPE IN CALIFORNIA AND BRIEFLY CONSIDERS SOME CONSEQUENCES OF ITS EFFECTIVE USE IN THIS AREA OF PRISON AFFAIRS. (AUTHOR ABSTRACT MODIFIED)