Do you have to submit to sexual overtures if you generally sleep outdoors?

**** The information written here is not legal advice and the author of this blog is not your lawyer.  These posts merely contain ideas to help you plan and organize your legal research and identify potentially helpful sources of law. ****

Rape is rape, whether it is indoors or outdoors, whether it is done by a stranger or someone who knows the victim, and whether or not the victim has a home. It can be loosely defined as non-consensual sexual intercourse. Criminal law statutes against rape,[1] and the cases interpreting those, are consistent about the illegality of unwanted sexual contact, but have variations in every state. They define sexual contact in different ways and have diverse standards for how victims have to have conveyed their lack of consent.[2]Hospitals and police have cooperative systems for proving that the contact occurred. In every state, there are two problems in successfully prosecuting somebody for rape: identifying the attacker and proving that the contact was unwanted.  Clearly, even having one of those problems out of the way still leaves a very hard case to prove. If the victim has never seen and doesn’t know the attacker, it is hard to find the right perpetrator. Once that person is found, it is relatively easy to prove that the victim did not consent to having sex with the stranger.

In the opposite situation, when the identity of the attacker is known, the hard part is proving that the contact was unwanted.  Particularly hard to prosecute is the situation in which one homeless person has been raped by another homeless person who resides in the same shelter or outdoor area. The defendant’s attorney could ask the victim where he or she generally sleeps and then follow-up by asking something like, “then isn’t it true that you and the accused had essentially been sleeping together prior to the events of the alleged attack?”

Even when the attacker was unknown and not necessarily homeless, it is conceivable that a defense attorney might lead the jury to believe that a homeless rape accuser made him or herself available by sleeping outside or in a group setting. The prosecutors in those situations will look for guidance in the cases involving acquaintance rape, where courts have examined the concept of consent.

In cases of acquaintance rape, courts are in the odd position of analyzing social interaction[3] in order to figure out whether the crime occurred. To determine whether the victim consented to intercourse, they look at things like whether the victim and defendant were voluntary social companions,[4] and whether the accuser consented to some degree of affection, but not necessarily intercourse.[5]

A homeless victim who does not have a private space where he or she can go to avoid unwanted attention might also be burdened by jury presumptions that misinterpret those social considerations. They might think, for example, that the homeless are mentally ill and get hysterical after ordinary sex or that the homeless will do anything for money and might claim rape if they don’t get paid after sex.

A homeless victim of rape, or that victim’s friends and advocates, can help the case by educating the prosecutor about the victim’s daily life and the culture and routines in that homeless community. Those details can illustrate the homeless victim’s particular risks and limitations in trying to get away from attackers. It is not the kind of information that proves whether the crime occurred, but it will convey what kinds of protection and communication methods were available to the victim. It gives the prosecutor context for demonstrating to the jury how this particular sexual encounter was victimization and not consensual.

[i] State criminal codes are available at  Within a state’s code look under “sexual assault” or “sex crimes” if there isn’t a listing for “rape.” [ii] In public libraries, look for Frances P. Reddington and Betsy Wright Kreisel, SEXUAL ASSAULT: THE VICTIMS, THE PERPETRATORS, AND THE CRIMINAL JUSTICE SYSTEM (Carolina Academic Press, 2005). In law libraries, look for Wayne R. LaFave, CRIMINAL LAW Chapter 17 (West, 2003).

[iii] See generally, Note, Acquaintance Rape and Degrees of Consent: “No” Means “No,” but what does “Yes” Mean?, 117 Harv. L. Rev. 2341 (2004).

[iv] “Rape is a felony of the second degree unless … the victim was not a voluntary social companion of the actor upon the occasion of the crime … .” Model Penal Code § 213.1(1) (1985).  However, neither current state laws nor recent appellate cases name voluntary social companionship as a consideration in date rape cases, probably because contemporary social standards recognize that even if someone has willingly participated in sex with this attacker before, it does not mean that the sex was consensual this time.  Nevertheless, because it is still in the Model Penal Code and traditional cases include it, there is a chance that a victim might have to explain how he or she communicated differently with the defendant when the sex was consensual compared to when it wasn’t acceptable to the victim.

[v] Acquaintance Rape and Degrees of Consent: “No” Means “No,” but what does “Yes” Mean?, supra at 2346.

Do homeless employees have any legal right to get out of doing the dangerous day labor jobs?

**** The information written here is not legal advice and the author of this blog is not your lawyer.  These posts merely contain ideas to help you plan and organize your legal research and identify potentially helpful sources of law. ****

If day laborers see that working conditions look too dangerous or difficult for them, they can opt out of doing the work. They are not necessarily entitled to be assigned to different work, but opting out of something dangerous is the best way to avoid getting sick or injured.[i]

If an employee starts the work and then quits when he discovers that it is risky, he is still entitled to get the minimum wage for the time he worked, whether or not he finished the assigned task. This is basic contract law. The worker agrees to work and the employer agrees to pay for the work. If the worker does part of the job, he is entitled to part of the pay.[ii]
Many workers guess that construction companies, landscapers, and other contractors bring in day laborers for work that involves heavy lifting, harsh chemicals, and other things that are hard on the body because they don’t want to risk injuring the full-time employees who are covered by workers’ compensation insurance.Some employers may also think that temporary or day laborers don’t have any way to make a legal claim for workers’ compensation benefits.  But, in fact, even day laborers are entitled to have their work-related medical expenses covered by the employers’ workers’ compensation insurance.[iii]

Workers’ compensation programs exist to efficiently resolve workplace injury claims so that workers and employers do not have to go through the expense and long processes involved with a negligence case in court.[iv] The Occupational Safety and Health Administration (OSHA)[v] regulates workplace safety. That organization advises employees at unsafe or unhealthy work sites to take steps to avoid danger:

1. Ask the employer to fix the hazard.
2. Ask the employer to assign you to different work.
3. Inform the employer that you will not do the hazardous work.
4. Stay at the work site until the employer requires you to leave.[vi]

These steps seem more applicable to permanent workers than temporary workers, but they are still a logical progression. If taking those steps does not result in your getting safer work, you can file a complaint with OSHA.[vii] Your state might also have an occupational safety and health plan under OSHA’s approval.[viii] If you have stayed at the job and become injured or sick due to unsafe or unhealthy conditions there, you should file a worker’s compensation claim and also make sure that OSHA knows how you got hurt or sick.
For either or both of these claims, seek help from the nearest legal aid office or homeless advocacy group.[ix] They will help you collect the medical records necessary to document your suffering. These claims processes involve a lot of data collection and many formal procedures.
Once you have filed your claim form, either through OSHA or the state’s workers’ compensation office, you should expect to have meetings with investigators. The investigators will want to know everything about the job site, the other workers, the supervisors, the weather, the tools, the pace, your health going into the job, and many other details.

Unless you have filed an anonymous OSHA complaint, you will probably have to participate in an initial hearing to personally explain and answer questions about your injury or sickness in connection with the job. (If the job accepts responsibility for your injury or sickness, you won’t have to go through this hearing process; the workers’ compensation insurance will cover your medical costs as long as you follow the instructions they give you.)

If you do not prove your claim at that hearing, you can appeal the decision at another hearing through the workers’ compensation office. If that hearing is not successful, you can sue the workers’ compensation office and the employer in court for failing to properly follow the state workers’ compensation law.

[i] If the employer transported the employee to a far away work site and the employee opted out of the work as soon as he got there, he should not expect payment or a ride back, at least until the employer takes the other workers back. The contract was an exchange of work for pay. By backing out of the job before it started, the worker breached the contract. He can’t expect the former employer to spend money on him. Maybe the police can help. Phone calls to 911 are free. Explain your emergency as being removed from home and ask them to get you assistance from homeless advocates or any other nearby social services agency.[ii] Two sources that clearly explain basic employment law are: Merrick T. Rossein, Ed. THE EMPLOYMENT LAW DESKBOOK FOR HUMAN RESOURCES PROFESSIONALS (West, 2001) (See Section 4.) and Barbara Kate Repa, YOUR RIGHTS IN THE WORKPLACE (Nolo, 2005).


[iii] Locate your state Workers’ Compensation office through the blue pages of the phone book or on the Web at You will see that “employee” is defined to include any person who is supervised and paid by an employer.

[iv] It is not impossible for an injured employee or a deceased employee’s survivors to bring a negligence case against an employer. If the hazardous conditions were concealed or the law exempts the particular work arrangement from the workers’ compensation program, such a case is possible. A detailed demonstration of how to prove that kind of case is in Christopher M. Mislow, Cause of Action Notwithstanding Workers’ Compensation Statute Against Employer or Fellow Employee for Injury to or Death of Employee, 11 COA 717 (updated through 2006).

[v] The OSHA Web site is at

[vi] OSHA’s instructions for dealing with a dangerous worksite are at

[vii] OSHA’s complaint Web site says that any employee can file a complaint about employment safety without giving his or her own name. The site includes an online complaint form and all of the necessary information about filing a complaint.

[viii] OSHA approved state occupational safety and health plans can be reached via or your state’s department of labor and employment.

[ix] Find legal aid offices through LawHelp at and homeless advocates through the National Coalition for the Homeless at

Do you have a right to sleep in public?

**** The information written here is not legal advice and the author of this blog is not your lawyer.  These posts merely contain ideas to help you plan and organize your legal research and identify potentially helpful sources of law. ****

Public safety is one of the paramount obligations of city governments. Police and fire assistance, garbage pick-up, sewer authority, street repair, and numerous other city services function to assure safety.[i] People who walk public streets, ride public transportation, patronize public buildings, and sleep in public places are all legally entitled to public safety.

As was described in the blog post about having sleep disrupted while staying as a guest in someone else’s place, both criminal laws and civil laws punish people whose actions aggravate, annoy, or attack another person. The criminal law system punishes with fines payable to the state, probation, community service, and jail time-depending on the crime. The civil law system punishes people by making them pay money to their victims. See the posts about dealing with police and the courts for more information about making these different kinds of court cases.

In both criminal and civil law, actions like annoyance and aggravation constitute harassment. Physical attacks are classified in the category of assault crimes. In any state the assault category might include such divisions as simple assault, assault and battery, assault with a deadly weapon, or sexual assault.

Sometimes homeless victims don’t access the criminal system after attacks because they don’t expect help. A victim’s location does not affect the right to have an attacker charged with harassment or assault. It also does not alter the potency of those charges. In other words, the police cannot say, “well too bad he got attacked; he was asking for it by sleeping outside.” Police do not make those kinds of location-based judgments about domestic violence victims who remain at home with someone violent or about road rage victims who continue driving when someone else on the road is being aggressive; they cannot make them about homeless people.

Even the attacker’s defense attorney usually cannot use the victim’s homelessness as some sort of excuse for the attack. To imply that because someone is homeless he might be mentally ill, or asking for trouble, or somehow morally inferior would be an illegal use of victim character evidence in the criminal trial against the attacker. The Federal Rules of Evidence, which apply in federal court cases and which serve as a model for state evidence rules, rarely allow a victim’s character to be invoked in a case.[ii] If a lawyer did try to use those kinds of claims against a homeless victim, or even a homeless attacker[iii] or witness,[iv] the judge would forbid them from being presented.

When there is a pattern of crime in an area populated by homeless folks, there are several ways to reduce the likelihood of being victimized:
1. Stay away from that area
2. Get the police to regularly patrol the area
3. Establish an internal patrol system by which you and the others who stay there take turns keeping watch
4. Have a threat response system, a plan for how you’ll react to help yourself or someone else and
5. Enlist homeless advocacy organizations to help draw public and government attention to an outbreak of crimes against the homeless.

Even if no methods of self-protection are implemented, continuing to stay in a vulnerable place would not reduce a homeless person’s ability to have an attacker arrested and prosecuted. The Police Officers’ Code of Ethics assures that, “the fundamental duties of a police officer include serving the community; safeguarding lives and property; protecting the innocent; keeping the peace; and ensuring the rights of all to liberty, equality and justice.”[v] If police officers do not respond to distress calls or do not help to protect victims by investigating crimes and arresting attackers, then the victims and the public need to file ethics complaints with the police department. See the post asking “What if the police are rough with you” for information about reporting and fighting police misconduct.

[i] 2 McQuillin on Municipal Corporations §9.05 (1988).

[ii] Fed. R. Evid. 404 says, “Evidence of a person’s character or a trait of character is not admissible…except: (2) …a character trait of peacefulness of the victim offered by the prosecution in a homicide case to rebut evidence that the victim was the first aggressor.” Rule 412 tells about the limited circumstances when the sexual history of a sex crime victim can be used as evidence in the case against the attacker. The Federal Rules of Evidence are available for free in several places on the Internet including the Cornell Legal Information Institute State evidence rules are available within each state’s listings on another part of the Cornell site

[iii] Fed. R. Evid. 404, 405, 406.

[iv] Fed. R. Evid. 404, 608, 609.

[v] International Association of Chiefs of Police, Law Enforcement Code of Ethics, “Primary Duties of a Police Officer,” available at See also the next section of that code about “Performance of the Duties of a Police Officer” which says, “A police officer shall perform all duties impartially, without favor or affection or ill will and without regard to status, sex, race, religion, political belief or aspiration. All citizens will be treated equally with courtesy, consideration and dignity.” See  Individual police departments have their own codes of ethics with similar promises of quality service.