Rape in Criminal Law

Rape

A. Act Requirement

MPC 213.1 (difference in grading by force level):

·         Guilty of rape when not his wife if: compels her to submit by force or threat of force of imminent death, serious bodily injury, extreme pain or kidnapping 

·         Gross sexual imposition: he compels her to submit by any threat that would prevent resistance by a women of ordinary resolution

·         Typically statutes specify that conviction of rape requires proof of intercourse committed by force or forcible compulsion and the victim’s non-consent. Threat of force can be substitute for actual force in most jurisdictions. Focus on victim’s resistance to evaluate use of force (actus reus)

·         “Force” requirement gone in some jurisdictions. p307

·         Reasonability of Fear in Absence of Resistance: Most courts say that the absence of resistance must be explained by fears that are objectively reasonable.  One concern is to assure that the defendant realizes that the woman is submitting out of fear rather than desire.  However, one court has held that a conviction can be sustained when the victim’s fear is unreasonable, if the perpetrator knew of the victim’s subjective fear and took advantage of it.

·         Four ways to define non-consent:

1.      Rusk – reasonable resistance by victim (traditional, masculine view of resistance)—makes her resistance used to show his culpability (used force)

2.      Opt-out standard: no means no

3.      Opt-in standard: MTS, must affirmatively manifest by words or actions.

4.      Verbal opt-in standard

·         Non-physical threats v. consent. See State v Thompson – high school principal threatened to fail student unless she had sex with him. Statute said without consent is only force or threat of force (bodily harm). Dismissed the sexual assault charges.

·         MPC §213.1(2) would have crime of “gross sexual imposition” for any threat that would prevent resistance by a woman of ordinary resolution. p315

·         But it must be coercion rather than bargain.

State v. Rusk MD 1981 p302

·         MD statute: 2^nd degree rape = vaginal intercourse by force or threat of force against will and without consent. Issue: how to define force, against the will, and without consent?

·         Victim drove D home. D takes her keys, told her to come up to his apartment.

·         She asked “if I do what you want, will you let me leave without killing me?”

·         Rape, then she left and reported it.

·         *D’s testimony disputed this.

·         Holding: Whether the victim’s apprehension of fear was reasonable is a jury question. Jury believed victim over Rusk.

·         Note MD defines force by evidence of victim physically resisting and being overpowered, or prevented from resisting by fear of bodily harm (death needs to be reasonable)

·         No culpability of ∆ discussed, the way force is defined makes the nature of her resistance an element of the crime.

Eliminating the force requirement:

State in the Interest of MTS NJ 1992 p318--

·         NJ statute: sexual penetration w/ another person, physical force (or coercion)

·         Hold: court interps only physical force required is the act of penetration w/o affirmative consent (verbal or action)

·         This def focuses on non-consent rather than action of rape.

·         Conflicting testimony. Court found consent to kissing and heavy petting, but not penetration.

·         Issue: is physical force element of sexual assault accomplished by non-consensual penetration involving no more force than necessary.

·         Holding: Just as any unauthorized touching is a crime for battery, unauthorized sexual contact = sexual assault.

·         Victim is not required to resist or affirmatively nonconsent.

·         Any force applied, in absence of what a reasonable person believes to be affirmative and freely given permission.

Mens Rea

Commonwealth v. Sherry MA 1982 p342

·         3 guys, 1 girl leave party. Got to house, all 3 have sex with her in turn. She demonstrated reluctance.

·         Issue: can men raise mistake of fact defense on issue of consent? Says it negates criminal intent.

·         Holding: No consideration of reasonableness, no need to show culpability à mens rea is in the act.

Commonwealth v. Fischer PA 1998 p344

·         Two Lafayette freshmen.

·         1^st sexual encounter – consensual “rough sex”

·         2^nd sexual encounter – she said no, he forced her.

·         Holding: no mistake defense.

Note: if added culpability requirement, it would be even harder to convict ∆, especially if knowing or recklessness is used.

Rape Shield Laws

·         Rape Shield laws in every state except Arizona.

·         Sexual history not relevant to credibility of testimony

·         Can’t put evidence in about victim’s “reputation”

·         Prior sexual conduct excluded in general (expect when relationship with ∆)

·         Hearing before judge before trial instead of questions being sprung on cross-examination.

·         Some 6^th amend exceptions—countervailing right to confront witnesses (Davis v Alaska—SCOTUS said policy of protecting juveniles (in non-rape case) had to yield to 6^th amend right)

People v. Williams: Court rejects D’s constitutional challenge that barring evidence of victim’s prior sexual relations/work as prostitute violates right of effective cross-examination; prior sexual relations do not make it more likely that there was consent in this specific case; evidence of prostitution is not probative of consent/credibility (and maybe makes it even more unlikely that victim would engage in gratis intercourse)

Problems of Proof

MPC provisions: although these rules rarely exist in current law, they are still effectively embedded in social mores.

o   MPC’s Corroboration requirement: very difficult to demonstrate. Most states that initially had this requirement abolished it. Rational for requirement was that a charge of rape is easy to make and difficult to disprove. Difficult to prove unless semen because often little physical evidence.

o   MPC §213.6 (5) – testimony of complainant. No person shall be convicted of any felony under this article upon the uncorroborated testimony for the alleged victim. Corroborations may be circumstantial.

o   Caution requirement: cautionary instructions to jury that should examine victim’s testimony with care because so easy to make an accusation (not given in other crimes).

o   Prompt complaint requirement: many jurisdictions require a complaint within a certain time to prosecute, but in practice not how police bring cases. Remember in Rusk she had credibility (arguably) because made complaint right away.

o   MPC § 213.6 (4) prompt complaint. NO prosecution may be instituted or maintained under this article unless the alleged offense was brought to the motive of public authority within 3 months of its occurrence or, where the alleged victim was less than 16 years old or otherwise incompetent to make complaint, within 3 months after a parent, guardian or other competent person specially interested in the victim learns of the offense.