Rape

Question 1

What is the CL definition of rape?

Answer 1

Sexual intercourse:

(a) by force or threat of force
(b) against the will and
(c) without the consent of the other person

*Against the will and without the consent are generally deemed synonymous

Rape also includes non-compulsive intercourse in cases where woman cannot consent:

(1) Intoxication
(2) Unconscious
(3) Under 10
(4) Mentally ill
(5) Deception

Question 2

How do more progressive statutes modify the CL definition of rape?

Answer 2

(1) Remove physical force requirement (or recognize penetration as requisite physical force)
(2) Require affirmative permission to engage in sexual intercourse, although such permission may be inferred from acts or statements reasonably viewed in light of the surrounding circumstances

Question 3

What evidence must be shown to establish the use of force?

Answer 3

Evidence must show that:

(a) Victim resisted and her resistance was overcome by force, or
b) Victim was prevented from resisting by threats to her safety

Question 4

What evidence must be shown to establish a lack of consent?

Answer 4

Evidence must show:

(a) Proof of resistance, or
(b) Proof that victim failed to resist because of reasonably grounded fear

Question 5

How do the CL and MPC treat spouses?

Answer 5

CL - Marital rape exemption, either wholly or impart exists in some states
MPC - Partial exemption for spouses living together as husband and wife

Question 6

What is the MPC definition of rape?

Answer 6

Compelling a victim to submit by force or by threat of death, serious bodily injury, extreme pain or kidnapping, to be inflicted on anyone

Question 7

What is the MPC definition of gross sexual imposition?

Answer 7

A lesser offense of rape committed by compelling victim to submit by any threat that would prevent resistance by a woman of ordinary resolution

Question 8

What defenses to rape are available?

Answer 8

Consent

*Mistake is unlikely to fly

Question 9

How do the CL and MPC treat corroboration?

Answer 9

CL - Minority of states require corroboration

MPC - Requires corroboration of alleged victim, but allows for circumstantial corroboration

Question 10

How does the CL treat past conduct of victims and perpetrators?

Answer 10

Rape Shield Laws - Bar bringing in evidence of sexual activity not related to that particular incident (e.g., could bring in evidence that victim had sex with someone else that was the real perpetrator, but could not bring in evidence to show victim was promiscuous)

*Departure from FRE 413 - D’s prior commission of sexual offenses must be admitted (helping to show probability D committed the current crime)