Ch 8 - Rape Flashcards
Death Penalty for Rape
Coker v. Georgia - for women; no
Kennedy - for children
Statistics
- reported 1/3 of the time, no weapon 85% of the time, yet 92% are forcible, 3/4 of the time victim and offender had a prior relationship, resistance is most commonly verbal, physical resistance increases risk to the victim, 99% of offenders are male, 91% of victims are women
Historic Perspective
- Gender Stereotypes - male standard that allowed
- racism
- Resistance was necessary to prosecute rape (male standard)
- reform Concerns: conviction of the innocent
CL Rape
- D had sexual intercourse (penetration by the penis of the vulva)
- with a woman not his wife
- using physical force or the threat of force - some jurisdictions include deception and sleeping
- without consent
Spousal Immunity
CL: A husband who forced his wife to have sex COULD NOT be convicted of rape b/c consent by marriage, Wife is property, single legal existence
Modern:
- retained by most jurisdictions but trends to limit or eliminate
- Where spousal immunity is retained, husband may still be prosecuted for assault
- Separation or divorce destroys immunity
- Domestic partners may be included
Force or Threat of Force
CL rape required both force and lack of consent
- Force - physical force. Lack of consent alone was not sufficient
- Q of Fact for the jury
CL Resistance Requirement
- Resistance was necessary to establish the force element of the offense
- some juris don’t require force
*Conviction for forcible rape may not stand unless V resisted [physically] and her resistance was overcome by force or threats
BUT V was not required to resist if there was a sufficient threat of force
** sufficient to show resistance - enough to make lack of consent evident; reasonable under the circumstances
Fear v. Threat
where threat is used, both fear and threat are required
- FEAR ALONE IS NOT ENOUGH - fear is subjective
- D must have threatened – objective act
**NO forcible rape where female accedes to intercourse with a man simply because he is bigger and she’s afraid of him”
State v. Alston
Implied threat of force is a jury question
State v. Rusk
Generalized fear of force is not enough; need threat NEAR TIME OF SEX ACT and for the purposes of getting sex
Traditional Rape v. Modern Rape/Non Traditional Rape
Modern Rape – less violence, implied threats, acquaintance rape; rewards fighting back
Verbal resistance (“no”)
Is simply saying no enough?
– some argue men can honestly be mistaken and believe “no” means “yes b/c our culture prompts women to make token protest so she won’t seem easy
State v. Berkowitz
Verbal resistance alone is not sufficient to prove rape w/o showing forcible compulsion
In the interest of MTS
Force w/ sufficient resistance found based on that force necessary to achieve penetration
Modern Resistance Requirement
- Most jurisdiction**
- Resistance is generally no required b/c increased risk of injury to victim and criminal liability should not depend on victim’s willingness to resist
– other jurisdictions require less resistance (reasonable under the circumstances; nothing more than evidence of no consent
– extreme view: force requires no more force than that required for penetration (SUPER BROAD)
legislative considerations when creating rape statutes
- Ages necessary for aggravating factors
* if force is required
Withdrawn Consent
When during apparent consensual intercourse, the victim expresses an objection and attempts to stop the act and D forcibly continues despite the objection, that is forcible rape.
People v. John Z (p. 475, note 7)
– prior precedent: presence or absence of consent was determined AT THE MOMENT of penetration; that is the defining point of rape
Primal Urge Theory
Once a males reproductive urges are aroused, he needs necessary time to cool off a stop – leaves decision to jury to decide how long is reasonable to stop
Mistake of fact (rape
Majority: if D has a reasonable and bonafide belief that a woman voluntarily consent to have sex, he does not possess the mens rea necessary for rape.
Minority: (Commonwealth v. Lopez) Although state must prove lack of consent, state does not have to prove D intended the intercourse to be without consent. It is relevant if V consented NOT whether D knew of victim’s consent
DECEPTION - Fraud in the factum
Misrepresentation about the actual act – (dr w. metal tool)
-negates consent
DECEPTION - Fraud in the inducement
Misrepresentation that lead V to engage in conduct with false or mistaken beliefs (Boro v. Superior Court)
- does not negate consent
MPC on Deception
Enough gradients in sexual conduct to allow more deceptions to be actionable
– Boro would be actionable
Rape Shield Laws
- Trial Judge may exclude relevant evidence if its probative value is outweighed by undue prejudice
- to determine admissibility, court conducts a balancing test btwn the interests of rape shield laws protecting V and D’s right to confront and cross examine (6th amendment) witness and evidence.
- ** Denies D the opportunity to cross examine victims or offer evidence about her prior sexual conduct or reputation for chastity - not legally relevant (may violate the 6th Amendment) (Herndon)
- ** Justifications: Rejects connection btwn truthfulness and chastity, V’s consent with one will not make it more likely that she consented with another (Wilhelm), w/o rape shield laws women may not report for fear of shaming
Cautionary Jury Instructions
“Consider V’s testimony w/ special care”
– b/c it is assumed that rape victims are not trust worthy
** some say these instructions are unnecessary b/c D’s have other protections from wrongful conviction
Statutory Rape
Has no mens rea requirement, is committed by the act of intercourse, MISTAKE OF FACT OF AGE IS NO DEFENSE (Garnett)
- policy - it protects society, the family and the child; young people lack the capacity to consent b/c they are too naive to understand the nature of the act and need to protect themselves from adult influences
MPC §213.1(1)
Elements of basic rape:
- Sexual intercourse (broad), by man with a woman not his wife and
- by force or threat of serious physical harm or kidnapping to V or third person OR
- Where D used drugs without the knowledge of the women to impair her ability to judge or control her conduct or resistance OR
- where victim is unconscious OR
- Where victim is under 10 yrs old
Mens Rea: Purposely, knowingly or recklessly as to each element
2nd degree felony
1st degree IF victim is injured, victim was not a voluntary social companion with a sexual history with the accused
3rd degree if Gross Sexual Imposition : Sex, by a man with a woman not his wife, AND D compels her to submit by any threat that would prevent resistance by reasonable woman (must be violent threat) OR V is so mentally impaired that she is incapable of appraising the nature of her conduct (he does not cause her impairment) OR he knows she is unaware that a sexual act is being committed OR she mistakenly believes D is her husband
Comparing CL and MPC Rape
Similarities:
*Use gender specific terms, retain spousal immunity, have a corroboration requirement, have special jury instructions, have prompt complaint requirement
Differences:
*MPC expands conduct that can constitute rape, provides degrees of rape, focuses on D’s conduct, not victim’s lack of consent (i.e proof of resistance is not required), has a broader definition of rape
Trend of Modern Rape Statutory Changes
- Gender Neutral
- Broader definition of “force”
- Broader range of sexual activity
- concept of consent is ELIMINATED – focus on D’s conduct not V’s sexual history
- Limits or eliminates spousal immunity
