#9187 - Rape - Criminal Law

Rape

The Resistance Requirement
1. Rusk v. State
  1. Woman had gone to reunion, met defendant who asked for a ride home. At home, repeatedly asked woman to come upstairs. Took keys out of ignition and asked “will you come up now?”
  2. Issue was reasonableness of fear. Court held that there was nothing in the fact pattern that suggested that the fear was reasonable.
  3. COA reversed; reasonableness of the fear was for the jury to determine.
2. State of New Jersey In the Interest of M.T.S.
  1. Two different stories: the 15 year old said that the 18 year old who was living with them had raped her. The 18 year old seemed to say that he was led on. What is meant by physical force?
  2. The old laws were based on the actions of the victim
  3. The court reinterprets the physical force requirement in light of the battery rule, and does away with any reference to the victim's state of mind.
  4. The state must prove beyond a reasonable doubt that there was sexual penetration and that it was accomplished without the affirmative and freely-given permission of the alleged victim.
Mens Rea
1. People v. Williams
  1. Two different versions: the woman said that she was led into the hotel room, hit, and raped. The man said that he was induced into having sex and then asked to be payed.
  2. Question was about a Mayberry instruction about reasonable and good faith mistakes.
  3. Objective component of defense: was it reasonable?. Subjective: did they honestly believe it
  4. Court holds that a Mayberry defense was not allowable here, because the defendant was claiming that there WAS consent, not that there was a mistake of consent.

NYPL Sex Offense Definitions

§ 130.00 Sex Offenses (definitions)

Sexual Intercourse: ordinary meaning and occurs upon any penetration, however slight.

Oral Sexual Conduct: conduct between persons consisting of contact between the mouth and the penis, the mouth and the anus, or the mouth and the vulva or vagina.

Anal Sexual Conduct: conduct between persons consisting of contact between the penis and anus.

Sexual Conduct: any touching of sexual or intimate parts meant to gratify sexual desire of either party.

Married: existence of relationship between actor and victim as spouses, recognized by the law.

Mentally Disabled: suffers from mental disease or defect that renders them incapable of appraising the nature of their conduct.

Mentally Incapacitated: temporarily incapable of appraising or controlling conduct due to influence of narcotic or intoxicating substance administered to him without his consent.

Physically Helpless: unconscious or unable to communicate unwillingness to an act.

Forcible compulsion: compel by (a) use of physical force; or (b) a threat, express or implied, which places a person in fear of immediate death or physical injury or fear that they are someone else will be kidnapped.

Foreign Object: instrument or article which, when inserted in the vagina, urethra, penis, rectum or anus, is capable of causing physical injury

Sexual Conduct: sexual intercourse, oral sexual conduct, anal sexual conduct, aggravated sexual contact or sexual contact.

Aggravated sexual Contact: inserting, other than for a valid medical purpose, a foreign object in the vagina, urethra, penis, rectum or anus of a child, thereby causing physical injury.

Health care provider: any person who is, or is required to be, licenses or registered or holds himself or herself out to be licensed or registered in the profession of medicine, chiropractic, dentistry or podiatry.

Mental health care provider: physician, psychologist, professional nurse, clinical social worker, licensed master social worker under supervision of a physician, psychologist or clinical social worker.

MPC Sexual Offenses Definitions

“Sexual Intercourse”: per os or per anum, with some penetration, however slight, emission is not required.

“Deviate Sexual Intercourse”; sexual interxcourse per os or per anum between human beings who are not husband and wife, and any form of sexual intercourse with an animal

NYPL

MPC

Common Law

§ 130.05 Sex Offenses; Lack of Consent

1. Element of every offense defined in this article that the sexual act was committed without the consent of the victim

2. Lack of consent results from:

(a) forcible compulsion; or

(b) incapacity to consent; or

(c) where the offense charged is sexual abuse or forcible touching, any circumstances, in addition to forcible compulsion or incapacity to consent, in which the victim does not expressly or impliedly acquiesce in the actor's conduct; or

services.

§ 130.10 Sex offenses; limitations; defenses

1. If the lack of consent is due to mentally disabled, mentally incapacitated or physically helpless, it is affirmative defense that the defendant, at the time of the conduct, did not know of the facts or conditions responsible for such incapacity.

2. Conduct performed for vald medical or mental health care purpose shall not constitute a violation of any section of this artile in which incapacity to consent is based on circumstances set forth in paragraph (h) of lack of consent paragraph

3. Defense to circumstances of (h) if they consented after being advised that such conduct was not performed for medical reason.

4. incapacity bc less than 17, mentally disabled or a client or patient, defense if married to victim.

§ 130.16 Sex offenses; corroboration

Not convicted for lack of consent based on victim's mental defect, or mental incapacity, or an attempt to commit the same, solely on testimony of the victim, unsupported by other evidence tending to:

(a) establish that an attempt was made to engage the victim in sexual intercourse, oral sexual conduct, anal sexual conduct, or sexual conduct at the time of the occurrence and

(b) Connect the defendant with the commission of the offense or attempted offense

incapable of consent by reason of being mentally disabled or mentally incapacitated

Affirmative defense: less than 4 years older than the victim at the time of the act.

§130.35 Rape in the first degree

1. Forcible compulsion

2. Incapable of consent by reason of being physically helpless

3. Less than 11

4. Less that 13, actor is 18+

§ 130.40 Criminal Sexual Act in the Third Degree

1. Engages in oral or anal sexual conduct with someone incapable of consent by reason of some factor other than being less than 17.

2. 21+ engages in oral sexual conduct or anal sexual conduct with a person less than 17.

3. Engages in oral or anal sexual conduct with another person, without consent for a reason other than incapacity to consent

§ 130.45 Criminal Sexual Act in 2^nd Degree

1. 18+ engages in oral or anal sexual conduct with less than 15

2. Oral or anal sexual with another who is incapable of consent because of mentally disabled or mentally incapacitated

Affirmative Defense: defendant was less than four years older than the victim at the time of the act.

§ 130.50 Criminal Sexual Act in 1^st

Oral or anal sexual conduct

1. forcible compulsion; or

2. incapable of consent bc physically helpless

3. less than 11

4. less than 13, actor is 18+

§ 213.1 Rape and Related Offenses

1. Rape: A male who has sexual intercourse with a female not his wife is guilty of rape if:

(a) he compels her to submit by force or by threat of imminent death, serious bodily injury, extreme pain or kidnapping to be inflicted on anyone; or

(b) he has substantially impaired her power to appraise or control her conduct by administering or employing without her knowledge drugs, intoxiants or other means for the purpose of preventing resistance; or

(d) the female is less than 10

2. Gross Sexual Imposition: Sexual intercourse with a female not his wife:

(a) compels her to submit by any threat that would prevent resistance by a woman of ordinary resolution.

(b) he knows she suffers from mental disease or defect which renders her incapable of appraising the nature of her conduct or

§ 213.2 Deviate Sexual Intercourse by Force or Imposition

(1) By force or its equivalent:

(a) he compels the other to participate by force or by threat of imminent death, serious bodily injury, extreme pain or kidnapping...

#9187 - Rape - Criminal Law

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