Sexual Offenses

Question 1

Traditional (non reformed) common law definition of forcible rape

Answer 1

Sexual intercourse (penal penetration) achieved forcibly, and against the will of a female, without her consent
--General intent crime

Elements:

1. Lack of consent
2. Sexual intercourse obtained by force or threat of force

Extreme force: Likely to cause serious harm or death

• • satisfies both lack of consent and force
• • no resistance required on part of the victim

Resistance requirement: Imposes an obligation on the victim to physically respond in a manner that externally demonstrates her unwillingness to engage in sex
– Must show victim resisted the man and her resistance was overcome by his force or threat of force

Constructive force: Threat of force

• • distinguishable from a fear of force (subjective)
• • threat of force must be manifested in words or actions (objective)
• • must be conduct that would cause the other person to fear serious harm, and fear of serious harm must be reasonably related to the sexual intercourse

Question 2

Moving beyond the traditional approach: Redefining force (Commonwealth v. Berkowitz)

Answer 2

Defining forcible rape by whether there was forcible compulsion by the perpetrator

• • Broader than physical force
• • Includes moral, psychological, or intellectual force used to compel a person to engage in sexual intercourse against that person’s will
• • If there is no consent, then any force by D to achieve sexual intercourse with the victim would satisfy forcible compulsion

Question 3

Abandoning force: Rape as nonconsensual sexual intercourse (M.T.S.)

Answer 3

Definition of physical force is satisfied under the statute if D applies any amount of force against another person in the absence of what a reasonable person would believe to be affirmative and freely-given permission to the act of sexual penetration

Outlier – affirmative permission not the trend

Question 4

Sexual assault

Answer 4

Unwanted sexual contact

Does not require force or penetration