Rape and Other Sexual Offenses

Question 1

Why is sex different from shoulder touching (battery)?

Answer 1

• There is a zone of intimacy that sex creates
• Maleness and femaleness have a biological basis that cannot be changed
• Sexuality is so central that it needs protection

Question 2

How threatening is threatening enough for coercion under the MPC?

Answer 2

“If a person of ordinary firmness would yield under the circumstances”

Question 3

Actus Reus

Sexual intercourse by a perp, with a victim not their spouse, constitutes rape if is committed…

Answer 3

1. Forcibly, OR
2. By means of certain forms of deception, OR
3. While the victim is asleep or unconscious or upon a victim incompetent to give consent (e.g., he is drugged, mentally disabled, or too young)

Question 4

Actus Reus

C/L: Traditional Approach (still followed in most states)

Answer 4

Requires proof that victim did not consent AND proof of physical force or some roughly equivalent form of coercion

• In order to prove force, the victim must physically resist the perpetrator (a verbal “no” will not do), or the perpetrator must use or threaten force on the present occasion to an extent that would cause a reasonable victim to fear grievous injury if the victim were to resist the sexual intercourse
• Intercourse secured by non-physical threat does not ordinarily constitute forcible rape
• Post-penetration withdrawal of consent does not convert lawful intercourse into rape, even if the perpetrator uses force or threats of force after consent is withdrawn

Question 5

Actus Reus

C/L: Modern approach

Answer 5

• Force requirement: majority of states still require both the D’s force and the victim’s nonconsent before an act of sexual penetration becomes a felony.
• Resistance requirement: resistance has been read into the statutes as a requirement somehow implicit in the elements of force or non-consent; courts continue to consider resistance (or its absence) as highly probative on the question whether the victim consented; BUT no state says this is necessary
• “Reasonable” Apprehension Requirement: victim needs to have a reasonable fear of imminent death or serious bodily harm in order “to obviate the need for either proof of actual force on the part of the assailant or physical resistance on the part of the victim” (Rusk). This is to ensure the D realizes the woman is submitting out of fear rather than desire (a signaling issue)

Question 6

Mens Rea

C/L: is rape specific or general intent crime?

Answer 6

• General. D need not possess an intention that the sexual intercourse be nonconsensual. It’s enough that he possessed a morally blameworthy state of mind regarding female’s lack of consent.
• Therefore, the general rule is that a person is not guilty of rape if he entertained a genuine and reasonable, albeit incorrect, belief that the female voluntarily consented to intercourse with him; he is guilty of rape if he unreasonably, i.e., negligently or recklessly, believed that the victim was consenting.
• This rule conforms w/ ordinary C/L mistake-of-fact principles relating to general-intent offenses.
• Some states will allow a conviction despite genuine and reasonable belief that female consented; these states have converted rape, a felony carrying severe penalties up to life imprisonment, into a strict liability offense.

Question 7

Mens Rea

MPC and C/L default M/R?

Answer 7

Recklessness (some subjective culpability)

General rule: D not guilty of rape if they entertained a genuine and reasonable, albeit incorrect, belief that the P voluntarily consented to intercourse; guilty of rape if unreasonably, i.e., negligently or recklessly, believed that the victim was consenting

Question 8

Mens Rea

MPC vs. C/L: voluntary social companion

Answer 8

• MPC: treats rape as a lesser offense if the victim was a “voluntary social companion” of the perpetrator, who “previously permitted him sexual liberties”
• C/L does not recognize such a distinction

Question 9

Actus Reus: Force

Employment relationship

Answer 9

Courts conflicted on whether an implied threat that arose solely in the context of an employment relationship is sufficient for constructive force. (DiPetrillo)

Question 10

Actus Reus: Force requirement for rape

Implicit threats

Answer 10

Threats must be made close to when the rape occurred (Alston)

Question 11

Actus Reus: Force

Non-physical threat

Answer 11

Duress is enough when a person of reasonable firmness would have yielded. The threat has to be death or grievous bodily harm. (Thompson)

Focus is not on the pressure itself, but on the illegitimacy of the proposal (Mlinarich)

Question 12

Actus Reus: Consent

MTS (minority rule)

Answer 12

Any act of sexual penetration w/o affirmative and freely given permission constitutes sexual assault.

Has to be a “yes” through words or deeds that a reasonable person would understand. (A negative standard for consent.)

Question 13

Actus Reus: Consent

Defective consent

Answer 13

Immature (age)
Mental retardation
Incapacity (victim unconscious)