Rape

Question 1

What is the actus reus of rape

Answer 1

carnal knowledge

Question 2

what is the mens rea or rape

Answer 2

knowledge of it being against the victim’s will

Question 3

what are the attendant circumstances of rape

Answer 3

by force or threat of force, and victim not your wife

Question 4

What was the original way to show the action was against the victim’s will

Answer 4

• Defendant had to know it was against her will, and victim ad to physically resist
• Put the burden of proof on the victim to fight back
• Had to have resistance to show lack of consent

Question 5

What was the original meaning of lack of consent

Answer 5

• saying no wasn’t enough to show something was against her will- it wouldn’t prove beyond reasonable doubt that D knew she wasn’t consenting
• valid consent is an absolute defense to rape

Question 6

Is all consent really consent

Answer 6

No sometimes consent is really submission to force or threat of force
Have to prove that the submission was a product of the force (there was a nexus between the two)

Question 7

When can consent be modified

Answer 7

Originally, consent could only be modified before penetration. Now it can be taken away at any time, but defendant has to withdraw in a reasonable amount of time

Question 8

Is lack of consent enough to result in rape.

Answer 8

Not at original CL. there had to also be a force to prove that ti was against the victim’s will

Question 9

What is an absolute defense to rape

Answer 9

valid consent

Question 10

What is the difference between CL and reform rape in terms of consent

Answer 10

At CL someone who consents to vaginal penetration could not be raped, even if she later withdrew her consent after penetration

Reform rape says withdrawal of consent can occur any time, even if penetration has already occurred, but defendant has a reasonable amount of time to withdraw before it is considered rape (question of fact for the jury to determine what they believe is a reasonable amount of time)

Question 11

How do prior sexual acts effect consent

Answer 11

make proving the current lack of consent argument much more difficult to prove

Question 12

At CL unwillingness was not against her will. What was the solution at CL

Answer 12

• Submission is required by force or threat of force
• If evidence shows violence or threat of violence then you can conclude defendant had the mental knowledge of lack of consent (idea is that if the defendant had to resort to violence or threats he knew she was not consenting)

Question 13

What is reform rape

Answer 13

it is how the element of “by force” was modified in order to shift the focus of rape from the victim’s actions to the defendants state of mind

Question 14

What is force in reform rape

Answer 14

only force necessary is the act of penetration itself. no further extrinsic force need be proved

Question 15

How does reform rape shift of focus open up a new problem related to mistake and MR

Answer 15

• The focus shifts from the act itself to the mental state of the defendant
• MR of knowledge of lack of consent must be proved. Defendant now assumes the risk of the conduct and the burden of proof if he doesn’t verify her consent

Question 16

How is consent effected by reform rape

Answer 16

No is enough to show lack of consent

Defendant must withdraw within a reasonable amuont of time after consent has been withdrawn

Question 17

What is fraud in factum

Answer 17

Consent is invalid
- Defendant is guilty of rape b/c victim didn’t know that she was having sex (ex. Patient thinks DR is examining her but he is really having sex with her)

Question 18

What is fraud in the inducement

Answer 18

Consent to sexual intercourse is valid
Defendant isn’t guilty of rape because victim knowingly consents to the act of sexual intercourse although under false pretenses (ex: Dr. says patient will die unless she has sex with him right now)