parent nodes: Brown v State | capital murder | common law | Criminal Law | intent | invasion of privacy
rape
Common-law definition
Rape at common law is "(1) carnal knowledge of a woman (2) forcibly and (3) against her will."
Model Penal Code
(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, intoxicants or other means for the purpose of preventing resistance; or
(c) the female is unconscious; or
(d) the female is less than 10 years old.
(2) Gross Sexual Imposition. A male who has sexual intercourse with a female not his wife commits a felony of the third degree if:
(a) he compels her to submit by any threat that would prevent resistance by a woman of ordinary resolution; or
(b) he knows that she suffers from a mental disease or defect which renders her incapable of appraising the nature of her conduct; or
(c) he knows that she is unaware that a sexual act is being committed upon her or that she submits because she mistakenly supposes that he is her husband.
MPC 213.1
Modern definitions
The actus reus of rape typically includes(1) penetration, but can include other forms of sexual contact
(2) the use of force by the assailant
-explicit use of threat
-threats, either explicit, [People v Barnes], or implicit [People v Dorsey] (stopping elevator constitutes implied threat)
-the force inherent in the sexual act may qualify
-prior violence in a sexual relationship typically does not qualify [State v Alston]
The mens rea of rape may include(1) purpose; [People v Mayberry] (reversing rape conviction on mens rea grounds where, .after short fight, victim went to defendant's apartment under her perceived danger and had sex without resistance)
(2) at least recklessness
(3) at least criminal negligence
(4) at least ordinary negligence
(5) strict liability crime; [Commonwealth v Fischer] (refusing mistake-of-fact defense for defendant, who attempted rough sex with victim after they had done so once before)
Relevant attending circumstances:
(1) (now obsolete) resistance by the victim
- "utmost resistance" standard at common law, which requires that "the resistance must be up to the point of being overpowered by actual force, or of inability from loss of strength longer to resist, of from the number of persons attacking resistance must be useless or dangerous, or there must be fear of duress or death" [People v Dohring]; Brown v State (reversing conviction for lack of resistance where rapist had no marks or scratches on his body)
- "resistance of 'a' reasonable woman under the circumstances"; [People v Dorsey] (no resistance required of woman, where larger attacker stopped elevator and told her to take her clothes off) [People v Barnes]
- resistance as evidence of consent or force
(2) consent or lack of consent
- objective lack of consent
-"reasonably construed" manifestations of consent or nonconsent [State v Smith] (victim spat, kicked, and insulted attacker, then decided to "give in" under threat)
- subjective lack of consent, [People v Barnes] (upholding conviction where victim pretended to consent to sex because of defendant's explicit physical and verbal threats)
- lack of affirmative objective consent [State ex rel MTS]
Cases
Brown v State (3) standard of "utmost resistance," plus exception for unconsciousness, threats, or exhaustion
[People v Dorsey] (stopping elevator, plus size advantage of attacker, showed use of force greater than a "reasonable" woman is required to provide)
[People v Barnes]
[State v Alston]
[State v Smith]
[Commonwealth v Fischer]
[People v Liberta]