Rape

Question 1

Common Law Rape Definition

Answer 1

unlawful sexual intercourse committed by a man with a woman not his wife through force and without her consent
- sexual intercourse
- woman “not his wife” (marital exemption”
- Force
- Actual force (battery), Threat of force (constructive), or both.
- sleeping/incapacitated victim
- without consent

(no longer valid)

Question 2

Resistance

Answer 2

resistance or lack of resistance is not an element of common law rape but can be important in circumstantially proving (or contesting) force and consent

Women’s resistance being overcome demonstrates forcible nature of rape
- not required if man is so forceful the woman cannot rsbly resist, or threats place her in fear of injury

relevant to mens rea as it places native that woman does not consent.

Question 3

Fraud in the Factum

Answer 3

woman has a fundamental misunderstanding that sexual intercourse is occurring

Rape b/c there is absence of meaningful consent

Question 4

Fraud in the Inducement

Answer 4

she understands that she is having sexual intercourse, but misunderstands a collateral matter related to the act of sexual intercourse

woman said to have consented thus NOT rape

Question 5

Scenarios where this can be tricky:

Answer 5

V thinks the D is the spouse:
- fraud in the inducement; minority courts treated as in fact b/c consented only to a lawful & moral acts

When D has STD (specifically AIDS/HIV) and convinces V to have sex:
- some courts treated as in the inducement but minority expanded to in the fact to cover cases where deception induces V to have sex if it creates a significant risk of serious bodily harm to V.
- could also be treated as aggravated assault or reckless endangerment.

Question 6

MPC Rape

Answer 6

felony in the second degree

Question 7

felony in the third degree

Answer 7

gross sexual imposition

Question 8

Mistake of Fact

Question 9

Consent

Answer 9

In Berkowitz = saying ‘no’ is not enough
State of NJ = not saying ‘yes’ is sufficient

Failing to say yes is sufficient to establish rape; permission must be granted to the act of sexual intercourse

Question 10

Battered Woman Syndrome

Answer 10

set of signs/symptoms such as fearfulness/feelings of helplessness seen in some women who are physically, verbally, or emotionally abused over an extended period by husband or partner.

Relevance:
-absence of resistance
-self defense, insanity, provocation, diminished capacity