Rape

Question 1

Elements of Rape

Answer 1

1. Sexual intercourse,
2. By force or threat,
3. Without consent,
4. Some states require reasonable resistance, others use resistance as evidence of force and/or non-consent

Question 2

State v. Rusk

Answer 2

Lack of consent may be established by proof of resistance or by proof that the victim failed to resist due to a GENUINE and REASONABLY GROUNDED FEAR that excuses the victims lack of resistance.

• Issue here is, was the fear reasonable?
  
  • Court weighed all the factors and held that it was.

Question 3

Degrees of resistance

Answer 3

1. Resistance to the utmost - Louisiana
2. Earnest Resistance - Several states
3. Reasonable resistance - Half the states,
4. Probative though not required - Remainder

Question 4

State v. Burke

Answer 4

Psychological pressure of a vulnerable victim by a police officer can suffice to satisfy the force requirement.

Coercion by authority.

Question 5

State v. DiPetrillo

Answer 5

Force or coercion means overcoming the victim through the application of PHYSICAL force or violence, against her will and without her consent. The Burke analysis cannot be extended to cover the employer-employee relationship.

Question 6

State v. Thompson

Answer 6

Force is defined in its ordinary and normal connotation: physical compulsion, the use of immediate threat or bodily harm, injury. The term does not extend to include intimidation, fear or apprehension.

• High school principle threatened non-graduation unless the student submitted to sexual intercourse. Court dismissed the charged.

Question 7

Commonwealth v. Milinarich

Answer 7

Affirms the physical aspect of the force requirement.

• Defendant was victim’s guardian, who threatened to send him back to juve unless he engaged in sex acts.

Question 8

State in the interest of M.T.S

Answer 8

The act of penetration itself is enough to satisfy the force requirement.

Issue. Is there a rape claim if there is no threat, use of force, or non-consenting conduct?

• In NJ YES! NJ is an AFFIRMATIVE CONSENT STATE, no affirmative consent = No consent.
  
  • Coercion element in the staute was meant to eliminate the traditional force requirements.

Question 9

Conceptions of force

Answer 9

Traditional

• Requires actual physical force and or violence.

Rusk

• Requires some force or threat of physical force, but force CAN be shown through a coercive atmosphere. Victims REASONABLE FEAR can excuse a lack of resistance.

DiPetrillo

• Psychological coercion MAY be enough in certain circumstances (i.e. Burke)

MPC 213(1)(2)

• Any threat that would prevent resistance by women of ordinary disposition.
• force or threat of imminent bodily harm

MTS

• Penetration by itself satisfies the force requirement.
• MINORITY RULE

Question 10

MPC 2.13(1)

Rape

Answer 10

1. A man who has sexual intercourse with a female not his wife, is guilty of rape if:
   
   1. Compels her to submit by threat of imminent death, serious bodily injury, extreme pain or kidnapping.
   2. He has substantially impaired her power to appraise or control her conduct by administering or employing without her knowledge, drugs, intoxicants, or other means for the purpose of preventing resistance.
   3. The female is unconcious,
   4. The female is less than 10-years old

Question 11

Conceptions of Consent

Answer 11

Traditional

Consent is presumed, unless there was force to the utmost,

Rusk

Consent is presumed, unless there is resistance or fear enough to prevent resistance,

MTS

Non-consent is presumed until affirmative consent is given.