Rape

Question 1

What are the traditional elements of rape?

Answer 1

1. Intercourse, 2. Non-consent, 3. Force

Question 2

For non-consent, how did the traditional approach require proof of non-consent?

Answer 2

Resistance by the victim proved non-consent —> up to the victim to actively express non-consent through resistance

Question 3

For non-consent under the traditional approach, could silence or passivity establish non-consent?

Answer 3

No, only resistance by the victim would show non-consent (such as pushing away or fighting back)

Question 4

How has the modern approach altered non-consent?

Answer 4

Now, consent can only be given by affirmative consent from the victim, either verbally or through conduct in light of all the circumstances —> non-consent is established by refusal OR by the absence of permission (passivity)

Question 5

Under the modern approach to non-consent, is the victim still required to resist to prove non-consent?

Answer 5

Nope

Question 6

For the force requirement, how did the traditional approach prove force?

Answer 6

Resistance from the victim OR in the absence of resistance, a fear of bodily harm or death

Question 7

Is the fear subjective or reasonably grounded?

Answer 7

Reasonably grounded decided by the jury

Question 8

How does the modern approach treat the force requirement?

Answer 8

Essentially eliminates the force requirement by allowing the element to be satisfied by the force required to complete the sexual act and nothing beyond

Question 9

In terms of mens rea for rape, do most courts favor strict liability for the consent requirement?

Answer 9

Most courts do not favor strict liability for consent