Page 22 Flashcards
What is considered sexual intercourse for rape?
Penetration of the vulva of the female by the penis of the male
In order for rape to be charged, must the unlawful force be intercourse?
Can be deviant forced sexual behavior
What must the penetration be in order for rape to exist?
The slightest penetration is enough, and sexual emission is not required
Modernly, are anal sex and oral sex also considered to be rape?
Yes
What has happened to the “by a man on a woman” stipulation of rape at modern law?
Courts now say rape is gender-neutral, so anyone can commit it on anyone
How does the MPC treat the by a “man on a woman” element of rape?
Maintains that the victim can only be female, and the perpetrator can only be male
Does the MPC follow the common law in saying that your spouse can’t be charged with rape?
Yes
Why was it that at common-law a husband couldn’t rape his wife?
Because marriage was deemed to create implied consent to intercourse
At common-law if a husband forced his wife to have sex with another man, is that rape?
Yes
If there is an issue about consent in a rape case, who will make the determination of mistake of consent?
The jury
Who must prove the lack of consent in a rape case?
Prosecution
When is consent not valid in a rape case?
If it is gotten by threat of immediate serious bodily injury or fraud about the nature of the act
What are the circumstances in which a woman cannot give her consent to sex?
When she is unconscious, under age, deceived, or mentally impaired
What does it mean to be mentally impaired so that you cannot give consent for sex?
You either have a mental defect, are insane, or intoxicated
If a woman is incapable of consenting to sex, but you have intercourse anyway, what have you done?
Committed a rape
In a rape case the defendant must be aware of what?
That the victim was not consenting
If the victim doesn’t put up a reasonable amount of resistance, or show unwillingness to have sex, has a rape still occurred?
Yes, because all that matters is that she didn’t consent
What is essential for consent to sex?
It must be actual and voluntary by a fully informed victim with capacity to consent
Can consent for sex be implied?
Yes, it can be implied by the circumstances and actions of the victim
If you give someone a roofie and then they consent to sex, can you be charged with rape?
Yes, because roofying someone makes their consent not voluntary and they don’t have capacity
What does it mean to have an honest and reasonable mistake about consent to sex?
Defendant acted in good faith and reasonably and honestly believed the victim consented
If you have an honest and reasonable mistake about consent for sex, are you guilty of rape?
Not if a reasonable person in your situation would’ve also believed you had consent
Can rape be predicated on the refusal to discontinue sex after the victim withdraws consent?
Yes, although defendant is usually given a reasonable time to discontinue (much less time than is necessary to ejaculate)
What are the two types of fraudulent rape?
- fraud in the factum
- fraud in the inducement
What is fraud in the factum rape?
When someone doesn’t knowingly consent to sex
Is fraud in the inducement considered rape?
No
Is fraud in the factum considered rape?
Yes
What is fraud in the inducement rape?
The victim knowingly consented to sex, but from misrepresentation of the benefit she would enjoy
What are some examples of fraud in the inducement relating to rape?
Telling someone to sleep with you and then you would do something for them, even though you had no intention of doing it (because here the victim know she is consenting to sex)
What is statutory rape?
Non-forcible sexual intercourse, with a minor, regardless of consent
What is the usual age for statutory rape?
16
If parties are validly married, can a husband be convicted of statutory rape?
No