Ch 8 - Rape

Question 1

Death Penalty for Rape

Answer 1

Coker v. Georgia - for women; no

Kennedy - for children

Question 2

Statistics

Answer 2

• 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

Question 3

Historic Perspective

Answer 3

• Gender Stereotypes - male standard that allowed
• racism
• Resistance was necessary to prosecute rape (male standard)
• reform Concerns: conviction of the innocent

Question 4

CL Rape

Answer 4

• 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

Question 5

Spousal Immunity

Answer 5

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

Question 6

Force or Threat of Force

Answer 6

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

Question 7

CL Resistance Requirement

Answer 7

• 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

Question 8

Fear v. Threat

Answer 8

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”

Question 9

State v. Alston

Answer 9

Implied threat of force is a jury question

Question 10

State v. Rusk

Answer 10

Generalized fear of force is not enough; need threat NEAR TIME OF SEX ACT and for the purposes of getting sex

Question 11

Traditional Rape v. Modern Rape/Non Traditional Rape

Answer 11

Modern Rape – less violence, implied threats, acquaintance rape; rewards fighting back

Question 12

Verbal resistance (“no”)

Answer 12

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

Question 13

State v. Berkowitz

Answer 13

Verbal resistance alone is not sufficient to prove rape w/o showing forcible compulsion

Question 14

In the interest of MTS

Answer 14

Force w/ sufficient resistance found based on that force necessary to achieve penetration

Question 15

Modern Resistance Requirement

Answer 15

• • 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)

Question 16

legislative considerations when creating rape statutes

Answer 16

• Ages necessary for aggravating factors

* if force is required

Question 17

Withdrawn Consent

Answer 17

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

Question 18

Primal Urge Theory

Answer 18

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

Question 19

Mistake of fact (rape

Answer 19

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

Question 20

DECEPTION - Fraud in the factum

Answer 20

Misrepresentation about the actual act – (dr w. metal tool)

-negates consent

Question 21

DECEPTION - Fraud in the inducement

Answer 21

Misrepresentation that lead V to engage in conduct with false or mistaken beliefs (Boro v. Superior Court)
- does not negate consent

Question 22

MPC on Deception

Answer 22

Enough gradients in sexual conduct to allow more deceptions to be actionable
– Boro would be actionable

Question 23

Rape Shield Laws

Answer 23

• 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

Question 24

Cautionary Jury Instructions

Answer 24

“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

Question 25

Statutory Rape

Answer 25

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

Question 26

MPC §213.1(1)

Answer 26

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

Question 27

Comparing CL and MPC Rape

Answer 27

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

Question 28

Trend of Modern Rape Statutory Changes

Answer 28

• 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