Rape

Question 1

Common Law

Rape

Answer 1

Carnal knowlege of a woman, forcibly and against her will.

Question 2

Common Law

Rape

Carnal Knowledge

Answer 2

Carnal knowledge meant penetration of the female sex organ by the male sex organ.

Question 3

Common Law

Rape

Forcibly

Answer 3

This required force or threat of force beyond that inherent in the penetration. In order to prove threat of force, the evidence had to show

• the female’s subjective apprehension of serious harm and
• conduct by the male that caused a reasonable apprehension of serious harm

Limited alternatives to force were recognized, such as drugging or intoxicating the victim to prevent her from resisting

Question 4

Common Law

Rape

Against Her Will

Answer 4

There were two requirements:

1. The intensity of the struggle must reflect the victim’s physical capacity to oppose sexual aggression.
2. Her efforts had to continue throughout the encounter

Later, some states required the women to exert earnest resistance and others required readsonable resistance.

Question 5

Common Law

Rape

Against Her Will

Incapacitation

Answer 5

Women did not have to show resistance if they were too incapacitated to give consent.

Question 6

Common Law

Rape

Against Her Will

Marital Immunity

Answer 6

Consent was conclusively presumed when a man had sex with his wife.

This has been abolished in most jurisdictions.

In the jurisdictions that kept marital immunity, it can’t be a defense in cases of forcible rape. And it generally doesn’t apply if the parties are legally separated or living apart.

Question 7

Common Law

Rape

Mens Rea

Answer 7

Generally, the man was not guilty of rape if her genuinely and reasonably believed the woman consented to sex. He was guilty of rape if he unreasonable, i.e., recklessly or negligently, believed the woman consented.

A few jurisdictions dropped the mistake rule so men can be guilty of rape even if they reasonably believe there’s consent

Question 8

Common Law

Rape

Prompt Complaint

Answer 8

If the woman did not make a prompt complaint, it was taken as evidence that the complaint was not genuine.

Question 9

Common Law

Rape

Corroborating Evidence

Answer 9

Some jurisdictions required the victim’s complaint to have corroborating evidence.

Question 10

Common Law

Rape

Prior Sexual Conduct

Answer 10

Prior sexual conduct of the complaintant was admissible as evidence of consent and to impeach the complaintant’s credibility.

Question 11

Common Law

Rape

Close Scrutiny

Answer 11

Many jurisdictions instructed juries that the offense was easily charged but hard to disprove and that the victim’s testimony required especially close scrutiny.

Question 12

Common Law

Rape

Fraud

Answer 12

If a man convinced a woman to have sex with him by lying to her about something, he could not be convicted of rape,

If a woman consented to an act and then performs a different act that turned out to be sex, the man could be convicted of rape

Question 13

Assault

Two Definitions

Answer 13

• It is an attempted battery.
• It is an intentional creation of a reasonable apprehension of imminent bodily harm

This specific-intent crime was a misdomeaner under the common law.

Modern statutes often include aggravated forms of assault, which are often felones.

Question 14

Battery

Answer 14

Battery is the unlawful appllication of force to the person of another resulting in either bodily injury or an offensive touching

It was a misdemeaner at the common law.

Modern statutes often include aggravated forms of battery, which are often felonies.

Many of these statutes have incorporated the common law crime of mayham by criminalizing dismemberment or disfigurement of the body

Question 15

Common Law

Kidnapping

Answer 15

The unlawful confinement and transportation of another out of the country.

It was a misdemeaner under the common law.

Question 16

Statutory Kidnapping

Answer 16

Kidnapping is the taking of a person (asportation) against the person’s will or restricting a person to a confined space (confinement) against the person’s will.

It is a felony.

Many kidnapping statutes either provide for aggravated liability if the victim is harmed or provide an affirmative defense lowering liability if the defendant voluntarily releases the victim unharmed

Question 17

Rape Reform

Elimination

Answer 17

This first group wanted to get rid of the crime of rape and use assault, battery and kidnapping instead.

Question 18

Rape Reform

Defendant’s Conduct

Answer 18

Some wanted to change the focus from the victim’s conduct to the defendant’s conduct but didn’t know how

Question 19

Rape Reform

Defendant’s Conduct

Eliminate Non-Consent

Answer 19

The second group wanted to eliminate the non-consent element and focus on the defendant’s conduct and how much force he used.

One example of this is Michigan’s rape reform.

Question 20

Rape Reform

Defendant’s Conduct

Eliminate Force

Answer 20

The third group wanted to eliminate the element of force and focus on non-consent.

The FBI defines rape this way.

Question 21

NY Rape in the Third Degree

Answer 21

A person is guilty of rape in the third degree when he or she engages in sexual intercourse with another person without such person’s consent where such lack of consent is by reason of some factor other than incapacity to consent

Question 22

NY Rape in the Second Degree

Answer 22

A person is guilty of rape in the second degree when he or she engages in sexual intercourse with another person who is incapable of consent by reason of being mentally disabled or mentally incapacitated.

Question 23

NY Rape in the First Degree

Answer 23

A person is guilty of rape in the first degree when he or she engages in sexual intercourse with another person who is incapable of consent by forcible compulsion

Question 24

Stautory Rape

Romeo and Juliet Clauses

Answer 24

In at least 29 states, consensual sex between teenagers is a crime that can lead to lead to sex offender status.

Many states have implemented age gap protections to account for these situations.

These age gaps have been put in place to account for sweetheart exceptions, which are commonly known as Romeo and Juliet clauses.

Question 25

People v. Liberta

Marital Exemption Against Rape

Answer 25

A law that discriminates on the basis of marital status violates Equal Protection unless the classifications reasonable and is rationally related to a legitimate government interest.

There is no rational basis for distinguishing between marital and non-marital rape so that provision violated Equal Protection.

Question 26

People v. Liberta

Rape as a Sex-Dependent Crime

Answer 26

A law that discriminates on the basis of sex violates Equal Protection unless it is substantially related to the achievement of an important governmental objective.

This standard is not met and so rape will be deemed to be a crime that can be committed by persons of either sex against persons of either sex.

Question 27

Statutory Rape

Answer 27

The common law got rid of the consent element if the victim was under 10 because they were deemed incapable of giving consent.

In many states, it’s a strict liability offense.

States often applied a tiered approach

• When the victim is very young, it’s punished as forcible rape.
• When the victim is older, especially if the defendant is only a few years older than the victim, it is punished as a felony of a lesser degree

Question 28

Rape

Affirmative Consent

(An Academic Concept)

Answer 28

The burden is on each party to a sexual encounter to prove that they had the affirmative consent of the other party.