#17107 - Rape Actus Reus, Mens Rea, Deception - Criminal Law

Rape

Common Law - look at statute (no usual MR/AR, if no MR, debate about what standard you need)

Context

• What is reasonable is different between men and women

• Rape is prevalent (esp young women) but unreported and under-prosecuted

• A lot of variation between jurisdictions in approaches and definitions

• Rape law unfair to women; society continues to be ambivalent about acquaintance rape to women's detriment

• Credibility is the key issue - how much do we need to know about the accused/accuser to decide who is telling the truth

• Evolution is rapid - shift from rape as a violent crime to rape as violation of bodily integrity and sexual autonomy

Purpose of rape law: stop unwanted sexual behavior while allowing voluntary sexual interactions

Fundamental Policy Question

• Do we want use rape law to (a) set/shape societal norms - utilitarian OR (b) reflect existing norms and punish according to the accused's subjective culpability - retributive

ACTUS REUS

Traditional definitions/approaches

• Force: physical force

  • Nonphysical (emotional, psychological, mental) threats not fulfill force requirement

    • Thompson: threat of withholding student from graduation not satisfy "force" (defined as physical compulsion or threat of physical compulsion)

    • Mlinarich: threat of sending back to detention home not satisfy "force"

  • Policy reason for requiring physical force:

    • Requiring physical force makes it much more likely that D knew victim was not consenting/ use this definition to separate acts involving more serious force and less serious force

    • If incorporate nonphysical force, worry about common transactional relationships /arrangements of sex and money becoming criminalized

      • ex. scenarios of rich man and woman who lost job and man offers to pay her expenses if she has sex with him)

• Threat of force: threat of physical force

• Resistance (seen in "against the will" requirements):

  • evidence of force - requires victim's active resistance (often physical, sometimes verbal); UNLESS force creates fear of imminent bodily harm so strong that its overcomes/impairs victim's will to resist

  • evidence of threat of force - conjures fear of imminent bodily harm that impairs or overcomes will to resist the force

  • CRITICISM:

    • Victim are often so paralyzed by fear that they cannot resist

    • Requiring resistance is favoring the male notion of fighting back

• Consent: presume consent unless there is a clear no

Transition from force/resistance model to

• Nonphysical forms of force - emotion, mental, psychological

• Eliminated force requirement; Consent based models

• Shift away from actus reus to mens rea

Consent Based model - rape defined as lack of consent

• Some jx still read in force by defining statute with language of force

• Jurisdictions have various definitions of consent

  • Some have no definition of consent

  • 2 big buckets

    • Consent is affirmative consent

      • No consent until there is a verbal or nonverbal affirmative indicator (Verbal "yes" VS. taking off clothes implying yes)

    • Consent is presumed consent

      • There is consent until there is a no, either express or implied (Verbal no VS. attempting to leave the room implying no)

• McFadden

  • Hawaii does not include force in statute; define compulsion as absence of consent and defined consent as voluntary agreement or concurrence

  • Court (1) gives defendant implied consent instruction and (2) mistake instruction - here "knowingly" MR so mistake could negate

• Implied consent included in meaning of consent

  • Pros: reflects how people act, they act voluntarily and consensually without being express about intention

  • Cons: higher risk of misunderstanding or misinterpretation between parties

Deception

• When does/should deception and nonphysical coercion vitiate (negate) consent?

  • Currently, criminal liability only if fraud in the factum: (1) doctor convinces woman to have sex as part of supposed medical procedure (2) man impersonates woman's husband/ other instances are debatable

  • Study shows that people find more consent in deception (lie about married) cases and less consent in coercion (expose secret) cases

    • Maybe consider there to be more free choice/will in deception cases (choice to believe him and could have independently investigated)

  • Within deception, people think different lies vitiate consent to different degrees: impersonate twin, lie about HIV, lie about marital status (least consent to most consent)

• Evans: (general Elonis idea)

  • Deception: posing as psychologist/ Coercion: "I could kill you… I could rape you…"

  • Focus on whether the speaker intended words to be a threat- defendant's state of mind controls > if not intend as threat - no criminal liability

    • NOT whether listener perceived the words to be threatening

    • In this case, speaker did not intend words to be threat, even though words were taken as a threat> cannot convict of rape in the 1st degree

• Fraud in the factum - fraud about the essential nature of the act > liable for rape

  • (1) victim not realize the act is sex - doctor tells them that it is medical procedure

  • (2) victim know it's sex but not realize its someone impersonating their spouse

• Fraud in the inducement > no criminally liable

  • Know having sex with a person but doing so under false assumptions

    • Everything other than identity of spouse falls into this bucket

    • Ex. Person says they belong to one religion (but not), induces sex > not liable

  • This is Boro and Israel case (if considered from American perspective (see below)

• Boro: fraud in inducement

  • Deception: victim told she needed a "medical procedure" to sustain her life, induces her to have sex

  • Here, she was aware that the nature of the act was having sex with a stranger > so consented > not rape

    • Consent induced by fraud is effective consent if fraud relates not to the act of sex, but surrounding matters

  • COMPARE Fraud in the factum - fraud as to an essential element or critical matter of the act

    • Ex. Impersonating a spouse - fraud as to identity of sexual partner

    • Is religion a critical matter/essential part of identity? Israel Case/Zarchin article says yes - fraud in factum

      • Uses a reasonable woman standard

      • If misrepresent religious affiliation to obtain sex > bc a reasonable woman in Israel would not want to sleep outside of her religion > guilty conviction of rape

    • Problem: what counts as "critical matter" is very subjective and varies among communities and individuals

      • Options are (1) create a reasonable person standard (2) create list of lies about critical matters that would vitiate consent (3) put in subjective mens rea (ex. Knowingly MR, if man knows a woman does not want sex with someone married and lies about his marital status > culpable)

  • Issue: we value sexual autonomy less than property rights (if someone lies to obtain property > liability! Why not sex)

MENS REA

Shift from Actus Reus (require force/resistance) to Mens Rea (require proof of defendant's mental state about lack of consent)

• Do we want use the law to (a) move societally normatively OR (b) reflect existing societal norms

• If (A) - Negligence/ reasonableness standard?

  • Many jurisdictions have adopted this

  • Advantage:

    • Retributive: significant harm caused

    • Utilitarian: encourages people to ensure there is consent before engaging in sex/ deter nonconsensual sex, easier to apply for prosecutors, moves society normatively, protects people harmed by current social norms

  • Disadvantage:

    • Retributive: punishes defendants who genuinely thought there was consent

  • BUT what standard of reasonableness to apply when male and female perceptions of reasonableness differ?

• If (A) - Strict Liability because public policy of protecting people from unwanted sex

  • Probably fail because high punishment and bedrock principle of subjective culpability

• If (B) - Recklessness/ Subjective standard? OR Knowingly (like in McFadden)?

  • Advantage: punishes defendants only when they had subjective awareness of no consent

    • Retributive: ensure defendant is culpable before punished

  • Disadvantage: fails to protect/get justice for victims harmed by current social norms; exonerates people with idiosyncratic notions of consent

• Fischer

  • Typical situation: only implied threat of force, one party understands situation to be threatening and other does not, acquaintances (college students)

    • Compare Williams: threat of physical force (knife), both know situation is threatening, strangers - actus reus clear, mens rea easy to show (if wielding knife, aware he is threatening physical force)

  • Here Fischer is unlucky, even though he genuinely did not understand how the situation was perceived to be threatening

    • Shift to mens rea not complete at the time, so attorney was not ineffective in failing to request a mistake defense

• Difference definitions of consent and government proof of MR

  • No definition of consent > both sides argue about how to define and use facts to support

  • Affirmative consent (verbal or nonverbal indicators) > easier for government to prove that D was aware there was no consent

  • Presumed consent - more difficult for gov to prove that D knew there was no consent

• Policy about charging rape

  • Should charge because of tendency of U.S. to over-criminalize in many areas but not in rape or sexual assault

  • Should not charge because once you criminalize something, you leave it to discretion of prosecutors,...