Rape Flashcards
RAPE
Forcible sexual intercourse by a male with a female not his wife, without her consent.
FORCE
A question of fact
(1) Subjective apprehension of serious harm
(2) The males conduct must put them in reasonable apprehension of harm
Mondernly, force only requires penetration.
SECOND-DEGREE RAPE
Occurs when a person uses forcible compulsion against a victim who is simply incapable of consent by reason of being either physically helpless or mentally incapacitated.
It also occurs when a victim, who the defendant is not married to, has a developmental disability.
DRUNKNESS (C/L)
a person may be found gqilt of rape if it is shown as a result of the intoxication being administered to her she was unable to give consent
However, if she was voluntarily drunk and provided inauthentic consent, then it is not forcible rape.
RESISTANCE
Traditionally, a woman must resist to the “utmost of her ability”. Some courts hold that verbal resistance is sufficient.
MARITAL IMMUNITY RULE
The husband cannot be guilty of a rape committed by himself upon his lawful wife.
Justifications:
The wife was the property of her husband and, thus, could not object to intercourse;
By marriage, the woman retained no independent legal existence in the marital relationship;
And a rape prosecution of a husband would violate marital privacy and undermine efforts of marital reconciliation
MENS REA - NON-MPC JURISDICTION
Rape is typically a general intent crime requiring morally blameworthy state of mind regarding non-consent.
Under common law approach to mistake-of-fact, good faith, reasonable mistakes of fact will exculpate general intent crimes.
But currently a few jurisdictions do not follow this approach.
MENS REA - MPC JURISDICTION
MPC does not use general and specific intent distinction.
New Art. 213 most often requires recklessness
(e.g. Sections 213.2 (Sexual Assault By Physical Force or Restraint), 213.6 (Sexual Assault in the Absence of Consent)),
but some offenses require higher level of mens rea.
(e.g. Section 213.1: (Sexual Assault by Aggravated Physical Force or Restraint) requires the actor to act “knowingly”)
FORCIBLE COMPULSION
Physical force, violence, moral, psychological or intellectual force used to compel a person to engage in sexual intercourse against that person’s will (Commonwealth v. Rhodes).
“NON-CONSENT”
Might be defined three ways in criminal law:
To prove unwillingness, there must be some verbal [or physical] protest (silence and passivity always imply consent).
We assume non-consent unless there is clear affirmative permission (silence and passivity always mean no consent).
Silence and passivity can imply either consent or non-consent, depending on all the circumstances.
ACQUAINTANCE RAPE
A type of rape where the perpetrator is someone known to the victim, such as a friend or social companion.
STATUTORY RAPE
Most U.S. jurisdictions treat sex with an individual under the age of consent as a strict liability offense. Mistakes as to the person’s age are not going to exculpate them.
MPC requires a mens rea of recklessness for sexual offenses involving minors.
PROMPT COMPLAINT
The complaint must make fresh discovery and pursuit of the offense and offender, otherwise it carries a presumption that her suit is but malicious and feigned. (Lord Mathew Hale).
The rule assumes that anyone who suffered such a heinous offense as rape would report it quickly if it were true.
CORROBORATION REQUIREMENT
A conviction for rape cannot be solely on the complaint’s testimony; there needs to be other evidence of forcible intercourse, such as torn clothing or bruises or other injuries.
Stemmed from a concern expressed by Hale that rape “is an accusation easily made, and harder to be defended by the party accused, tho never so innocent.”
CAUTIONARY INSTRUCTION
A charge such as that made against the defendant, in this case, is one which is easily made and, once made, difficult to defend against, even if the person accused is innocent. Therefore, the law requires that you examine the testimony of the female person names in the information with causation.
Formerly mandatory cautionary instruction to the jury in sexual offense trials in California until 1975
