Rape Flashcards
Common Law
Rape
Carnal knowlege of a woman, forcibly and against her will.
Common Law
Rape
Carnal Knowledge
Carnal knowledge meant penetration of the female sex organ by the male sex organ.
Common Law
Rape
Forcibly
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
Common Law
Rape
Against Her Will
There were two requirements:
- The intensity of the struggle must reflect the victim’s physical capacity to oppose sexual aggression.
- Her efforts had to continue throughout the encounter
Later, some states required the women to exert earnest resistance and others required readsonable resistance.
Common Law
Rape
Against Her Will
Incapacitation
Women did not have to show resistance if they were too incapacitated to give consent.
Common Law
Rape
Against Her Will
Marital Immunity
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.
Common Law
Rape
Mens Rea
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
Common Law
Rape
Prompt Complaint
If the woman did not make a prompt complaint, it was taken as evidence that the complaint was not genuine.
Common Law
Rape
Corroborating Evidence
Some jurisdictions required the victim’s complaint to have corroborating evidence.
Common Law
Rape
Prior Sexual Conduct
Prior sexual conduct of the complaintant was admissible as evidence of consent and to impeach the complaintant’s credibility.
Common Law
Rape
Close Scrutiny
Many jurisdictions instructed juries that the offense was easily charged but hard to disprove and that the victim’s testimony required especially close scrutiny.
Common Law
Rape
Fraud
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
Assault
Two Definitions
- 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.
Battery
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
Common Law
Kidnapping
The unlawful confinement and transportation of another out of the country.
It was a misdemeaner under the common law.
Statutory Kidnapping
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
Rape Reform
Elimination
This first group wanted to get rid of the crime of rape and use assault, battery and kidnapping instead.
Rape Reform
Defendant’s Conduct
Some wanted to change the focus from the victim’s conduct to the defendant’s conduct but didn’t know how
Rape Reform
Defendant’s Conduct
Eliminate Non-Consent
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.
Rape Reform
Defendant’s Conduct
Eliminate Force
The third group wanted to eliminate the element of force and focus on non-consent.
The FBI defines rape this way.
NY Rape in the Third Degree
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
NY Rape in the Second Degree
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.
NY Rape in the First Degree
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
Stautory Rape
Romeo and Juliet Clauses
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.
People v. Liberta
Marital Exemption Against Rape
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.
People v. Liberta
Rape as a Sex-Dependent Crime
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.
Statutory Rape
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
Rape
Affirmative Consent
(An Academic Concept)
The burden is on each party to a sexual encounter to prove that they had the affirmative consent of the other party.
