Monday, December 19, 2005

Outline - Criminal Law - VI - Rape

Criminal Law (2005 Fall)


  1. Overview
    FORCE NON-CONSENT RESISTANCE What mens rea must the defendant have with regard to non-consent to be guilty of rape? What role for reasonable mistake of fact?
    What is force? According to whom? Element or evidence?

    (no resistance, therefore no force)

    (evidence of resistance or threat of force)

    (fear in reasonable victim)

    (reasonable woman/more than token resistance)

    Rhodes (PA)
    (more than physical coercion; psychological, moral, etc.)

    MTS (NJ)

    Alston, Warren
    (resistance, evidence)

    (reasonable woman’s fear standard)

    (burden on defendant to obtain affirmative and freely given consent)

    Alston, Warren
    (necessary element)

    (obviated by showing of reasonable fear)


    (not purpose or knowledge)

    Fischer (PA)
    (reasonable mistake of fact available for non-traditional force, strict liability for physical force cases)

    Ascolillo (MA)
    (strict liability – no reasonable mistake of fact available at all)

    Negligence – most jurisdictions

    Recklessness – Alaska and UK

  2. Act
    1. Force, Non-Consent, and Resistance (see overview)
      1. Rusk – Victim did not resist because she was reasonably afraid. Defendant took keys, looked at her menacingly, asked her up to his apartment, pulled her by arm to the bed, initiated undressing.
      2. Warren – 6’3”, 185-lb. man lifted 5’2”, 100-lb. woman off bike and had sex with her.
      3. Alston – Defendant had sex with ex, pushing her legs apart, despite non-consent.
      4. Mlinarich – Juvenile delinquent forced by custodian to have sex or be returned to delinquent home.
      5. Rhodes – More than physical coercion: Psychological, moral, etc.
      6. MTS – Teens having sex after heavy petting.
      7. MPC § 213.1
        1. 1st degree rape – Actual death/SBI, or stranger
        2. 2nd degree rape – Threat of death, SBI, extreme pain, or kidnapping
        3. Gross sexual imposition - Compulsion by any threat that would prevent resistance by ordinarily reasonable woman
    2. Deception
      1. Evans – Defendant posed as psychologist conducting interviews for magazine article. A trick is not coercion.
      2. Boro – Defendant tricked victim into having sex as a non-surgical alternative treatment for fictitious disease. Fraud in the factum creates liability; fraud in the inducement does not.
  3. Intent (see overview)

    Generally most states use a negligence standard. Some, such as Massachusetts, use a strict liability standard.

    1. Sherry – Defendants took victim from party to another place, had intercourse. Victim alleged kidnapping, rape.
    2. Fischer (PA) – College students engaged in rough sex.
    3. Ascolillo (MA) – Acquaintances had sex before.
  4. Proof
    1. Corroboration – In American rule, not required for forcible rape.
    2. Rape shield laws – Victim’s prior sexual history inadmissible except:
      1. When it shows that victim and defendant had had sex before [Pope]; or
      2. When it shows witnesses’ biases, prejudices, or ulterior motives. [DeLawder]

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