#11426 - Rape - Criminal

Rape

1. History

   1. Blackstone: “Carnal knowledge of a woman forcibly and against her will.”

   2. Sir Matthew Hale: marital rape exception

      1. Justifications

         1. Act of marriage makes this not rape – mutual matrimonial consent and contract cannot be retracted. Sex is one of the things she agrees to.

         2. Less harm in the autonomy category because in marrying him, she’s said “I’m okay with having sex with him.” He can be charged with assault instead.

         3. Chattel

         4. Marriages are private and we do not want the law/government to delve into it. Instead of reconciling naturally, people will run to the court houses and accuse eachother of rape.

      2. People v. Liberta (1984) pg 357: spouses living separately. District court found for wife because NY statute differentiated between married couples living together and those not living together. Husband said distinction was unconstitutional.

         1. Held: There is no marital exception to rape law.

            1. Marriage license is not a contract that forces sex onto wife. Unconscionable.

            2. There’s something inherently different from assault in rape, otherwise we wouldn’t have rape law.

            3. Totally outdated

            4. If there’s violence to this degree, there’s nothing to be reconciled

   3. Statutory rape: “woman child” under 10

   4. Social Harm: property rights

      1. Deuteronomy 22:28-29-Man rapes = give money to father to make things right. Not permitted to divorce.

   5. NY Penal law = female person = not married to actor

   6. Maryland Code = rape = only vaginal intercourse

   7. Property offense – Traditional view (crime of violence) – community harm/autonomy/integrity/access/stigma attached to babies born out of rape

      1. If worried more about violence: focus on FORCE element

      2. If worried about autonomy: focus on other elements

      3. Changing to “sexual assault” to get rid of gender-default baggage, to get rid of perception that only vaginal intercourse qualifies, women are more comfortable identifying with non-rape label, lessens idea of force requirement

2. MPC Rape & Related Offenses §213.1

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

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

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

      3. (c) The female is unconscious; or

      4. (d) The female is less than 10 years old

         1. No statutory rape for model penal code—unless 10 years old or younger. So if the child is above 10, you have to go through all the elements of a crime.

      5. Mens Rea- recklessness because it doesn’t include a specific mens rea requirement.

3. Comparison to Common Law:

   1. Similarities:

      1. Gender-specific: i.e., legally only males can commit the offense and only females are victims.

      2. Upholds Marital Rape Exemption: Code affirms the general principle that nonconsensual intercourse with a spouse is not rape; though many states have chosen not to adopt this view.

   2. Differences:

      1. The term “sexual intercourse” is defined broadly to include genital, oral, and anal sexual penetration by the male of the female. §213.0(2)

      2. More emphasis on actions of D as opposed to V: Rape is defined in terms of the male’s acts of aggression or overreaching, rather than in the negative terms of the female’s lack of consent.

         1. Note: By shifting the focus to the male’s conduct, MPC seeks to avoid the common law’s emphasis on objective proof of the victim’s lack of consent. In particular, MPC does not require proof of resistance by the victim, although the Commentary recognizes that evidence of resistance may sometimes be required to convince the jury that the sexual act was compelled.

      3. Divides Rape into felony degrees;

         1. First and Second degree felony rape under MPC require higher level of fear/force;

         2. Third degree felony rape standard for force in gross sexual imposition is same standard of force for common law.

4. Looking at the victim

   1. Likely to know their attacker

   2. Rape often goes unrecorded. Some who record under the legal standard, do not consider the act to be rape.

      1. Hard psychologically (afraid of blame)

      2. Societal ideas about sex – men act aggressively

      3. Shame and denial

   3. Race

      1. Criticism regarding degree to which claims from women of color have gone uninvestigated

      2. Criticism regarded degree to which rape laws target black men in particular

   4. Response

      1. Based on particular male notions on how someone is supposed to respond to an assault

5. Force & Lack of consent

   1. Phys Force + lack of consent rape, even under traditional common law (e.g. Maryland)

   2. Phys Force + no lack of consent Consensual rape play

   3. No phys force + no lack of consent legal

   4. No phys force + lack of consent ?

      1. if unconscious, underage, mentally incompetent? unlawful even under CL

      2. non-physical coercion or implicit force ?

         1. Lovely allows for non physical coercion

         2. As does PA statute

      3. no force whatsoever (except act of penetration) M.T.S.

   5. State v. Rusk (1981) pg 302: woman and man meet at bar and woman agrees to drive him home. He takes her car keys and says she must come inside to get them. The look. No physical force applied, but once undressed “light choking.”

      1. Held: Lack of consent is established through 1) proof of resistance or; 2) proof that victim failed to resist because of fear of serious bodily injury/death (Hazel & common law)

         1. Objective test: fear must be reasonably grounded

      2. Possible resistance: leaving the engine running, refusing to go upstairs, saying that she wanted to go home and “didn’t want to come up”, begging him to let her go, asking about whether he’d kill her, crying, asking if he’d let her go if she did what he wanted

      3. Problem: if resistance is supposed to be an objective manifestation of non-consent so that the offender is aware of nonconsent, then maybe it’s not so great to look at whether or not the fear is reasonable if what we really care about criminalizing is morally culpable conduct on the side of the offender?

   6. Resistance Requirement

      1. Some states: have a resistance requirement

      2. Some: interpret the ‘force’ part of the rape law as requiring resistance (but D can bring up V’s lack of resistance for his defense)

      3. CA: removed explicit resistance requirement

6. Consent

   1. State in the Interest of M.T.S. (1992) – pg 318: V’s testimony is that V was asleep when D initiated penetration, she slapped him and told him to get off. D’s testimony is that they had been hooking up, she indicated to him that he should come to her bed, and they started having sex, during which she told him to stop and slapped him. Court did not credit V’s testimony that she was sleeping, but did credit V’s testimony that this was non consensual.

      1. Held: All that is required to show lack of consent is that the V did not affirmatively and freely give permission. If evidence only shows that V did nothing one way or the other in terms of affirming/denying, the act can still be sexual assault under NJ law.

         1. Whether words/actions were demonstrated to a reasonable person that permission was given (objective test)

      2. Look to legislative intent: provisions written by feminist group wanting to reform rape law to better represent the victim. Stated intention of reformers: to remove all features found to be contrary to interests of rape victims. (Didn’t want to put burden on victim to show that they were not morally blameworthy. Rather, focus on conduct of D and get rid of resistance requirement. We should force Vs to do things that we wouldn’t force other crime Vs to do)

      3. Problem of statutory interpretation: “act of penetration using physical force”

         1. Redundant?

         2. Counter: we know that sexual penetration alone is not a crime, so the idea that the additional element that’s causing it to be criminal happens to be called “physical force” and might be trying to capture the issue of nonconsent/offensive touching rather than actual physical force above and beyond that sexual act. MTS makes the default non-consent

      4. Policy problem?

         1. This requires courts to scrutinize the behaviors of the V all over again.

         2. If what we care about is nonconsent, it may not be possible to get away from this scrutiny, even if we get rid of the resistance requirement.

         3. But MTS shifts the default in presumptions to ‘non consent’ and therefore shifts burden to the D

         4. Note: the more discretion you give to jurors, the more inequity you will have with racial/gender problems

   2. An actor is guilty of sexual assault if he commits…

      1. Statutory language: “an act of sexual penetration … us[ing] physical force or coercion….

      2. MTS’s interpretation: “any act of sexual penetration…without the affirmative and freely given permission of the victim to … penetration….”

   3. Possible ways to capture non-consent element in statute

      1. Require state to prove that D should have known based on totality of circumstances that V didn’t consent, and that V actually said the word “no” or its equivalent

      2. Require state to prove only that D should have known based on totality of circumstances that V didn’t consent

      3. Require state only to prove the lack of affirmative verbal/non-verbal signs of consent

      4. Require state only to prove that victim didn’t give express verbal permission (didn’t say “yes”)

      5. Where a reasonable person would have believed the act unauthorized and offensive to the victim

   4. Fraud

      1. Inducement: you know you’re having sex, you just think some AC is different. (not criminal)

      2. In Factum – you do not know that what you are consenting to is sexual intercourse (criminal)

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