Definitions

Statutory Rape 

Statutory rape consists of having sex with minors. The victim’s immaturity takes place of the force. Minors cannot legally consent to sex. Statutory rape is a strict liability in most states. 


Grading the Degrees of Rape 

Simple Rape (second-degree) rape- rape without aggravated circumstances 

Aggravated Rape (first-degree) rape-rape committed with a weapon, by more than one person, or causing serious physical injury to the victim. This involves at least one of the following: 

The victim suffers serious bodily injury 

A stranger commits the rape 

The rape occurs in connection with another crime 

The rapist is armed 

The rapist has accomplices 

The victim is a minor and the rapist is several years older
Common law rape-intentional forced heterosexual vaginal penetration by a man with a woman not his wife.

Common law sodomy
anal intercourse between two males.

Sexual assault, or criminal sexual conduct
statutes enacted in the 1970s and the 1980s expanding the definition of “sex offenses” to embrace a wide range of nonconsensual penetrations and contacts, even if they fall short of violent.

Aggravated rape
the crime of physically attacking another person which results in serious bodily harm and/or is made with a deadly or dangerous weapon such as a gun, knife, sword, ax or blunt instrument. Aggravated assault is usually a felony punishable by a term in state prison.

Unarmed acquaintance rape
nonconsensual sex between people who know each other” tape involving dates, lovers, neighbors, coworkers, employers, and so on.

Corroboration rule
element in rape what the prosecution had to prove rape by the testimony of witnesses other than the victim.

Rape shield statutes
statutes that prohibit introducing evidence of victims past sexual conduct.

Prompt-reporting rule
rape victims have to report the rape soon after it occurs

Marital rape exception
legally, husbands can’t rape their wives

Sexual assault statutes
expanded the definition of “sex offenses” to embrace a wide range of nonconsensual penetrations and contacts.
Rape-intentional sexual penetration by force without consent

Force and resistance rule
victims had to prove to the courts they didn’t consent to rape by demonstrating that they resisted the force of the rapist.

Utmost resistance standard
the requirement that rape victims must use all the physical strength they have to prevent penetration.

Reasonable resistance rule
the amount of force required to repel rapists to show nonconsent in rape prosecutions.

Threat-of-force requirement (in rape)
prosecution must prove a sexual assault victim feared imminent bodily harm and that the fear was reasonable.

General-intent crime
intent to commit the actus reus

Honest and reasonable mistake rule
a negligence mental element in rape cases in which the defendant argues that he honestly, but mistakenly, believed the victim consented to sex.

Recklessness requirement
adopted by some states in rape cases, it requires that the defendant has to be aware that there’s a risk the victim hasn’t consented to sexual intercourse.

Reasonable mistake of age
a defense to statutory rape in California and Alaska if the defendant reasonably believed his victim was over the age of consent.

Simple (second-degree) rape
rape without aggravated circumstances

Aggravated rape
tape committed with a weapon, by more than one person, or causing serious physical injury to the victim.

Defining Rape and the elements

Common Law

-Four elements of rape, which had to be proved beyond a reasonable doubt
  • Sexual intercourse by force or a threat of severe bodily harm
  • Intentional vaginal intercourse
  • Intercourse between a man and a woman who was not his wife
  • Intercourse without the woman’s consent

-At Trials

     Victims were allowed to testify, BUT to be credible must have satisfied: 
Her chastity
Whether she promptly reported rape
Whether other witnesses corroborate the rape, and were a rare possibility.

-Husbands could not rape their wives.

Modern Law

-1970’s and 1980’s were the time of reformation of sex offense laws.


-Many states ABOLISHED the corroboration rule, PASSED the rape shield statutes, and RELAXED the prompt-reporting rule. 

-Removing the marital rape exception was one of the ways “rape” was redefined in some states. 

-Sexual assault statutes

               Shifted emphasis on advances by the perpetrator 
               Expanded offenses to include all sexual penetrations 
               Created contacts as a less serious crime 
               Made sex offenses gender-neutral 

-Criteria of seriousness

Penetrations are more serious than contacts 

Forcible penetrations and contacts are more serious than simple non-consensual penetrations and contacts. 

Physical injury to the victim aggravates the offense 

Rapes involving more than one rapist, “gang rapes,” are more serious than those involving a single rapist. 

-In 1974 Michigan gave unwanted sexual conduct language: First degree, Second degree, Third degree, and Fourth degree.

 
        First Degree includes sexual intercourse, cunnilingus, fellatio, anal intercourse, or any other slight intrusion, of any part of a person’s body or of any object in the genital or anal openings of another person’s body. Plus one of the following:

The defendant must have been armed with a weapon 

Force or coercion was used, and the defendant was aided by another person 

Force or coercion was used, and personal injury to the victim was caused 

     Second Degree includes intentional touching of the victims or actor’s personal parts or the intentional touching of the clothing covering the immediate area of the victim’s intimate parts (genital area, groin, inner thigh, buttock, or breast) for purposes of sexual arousal or gratification. One of the required circumstances of first degree must be existent also.

     Third Degree consists of sexual penetration accomplished by force or coercion.

     Fourth Degree consists of sexual contact accomplished by force or coercion.

The Elements of Modern Rape Law 

1. Actus Reus—Sexual penetration by force or threat of force

     -Governed by the force and resistance rule where victims had to prove they didn’t consent by proving they resisted the force of the accused rapist.

The Amount of Resistance

     -From the 1800’s to 1950’s, utmost resistance standard was to show a victim did not consent, but the victim had to show resisting with all able physical power. In the 1950’s this standard was softened to the reasonable resistance rule. This rule states the amount of resistance depends on the totality of circumstances in each case.

     -Many new rape and sexual assault statutes have dropped the resistance requirement. Courts have adopted new “force” definitions:

     Extrinsic force-requires some act of force in addition to the muscular movements needed to accomplish penetration. The amount of force required varies according to the circumstances of particular cases. 

     Intrinsic force-requires only the amount of physical effort necessary to accomplish penetration. 

Threat of Force 

-the prosecution has to prove the victim experienced:

Subjective fear is when the victim honestly feared imminent and serious bodily harm. 

Objective fear is fear that was reasonable under circumstances. 

Exceptions to the Force and Resistance Rule 

     -Never required physical resistance in all cases. No requirement if victim was incapacitated at the time of the assault

     -Fraud can substitute for force with:

Fraud in the fact consists of tricking the victim into believing the consensual act was not sexual intercourse. To wrongfully obtaining intercourse. 

Fraud in the inducement is fraud in benefits promised, not in the act of intercourse. 

     -Sexual intercourse with a minor who consented is rape because the law does not recognize the consent of minors.

2. Mens Rea—Intentional sexual penetration

     -Rape is a general intent crime. General intent in the case of rape, the act is forcible sexual penetration. These circumstance elements then center on mistakes. Three possibilities are reckless mistakes, negligent mistakes, or no-fault mistakes.

     -Pennsylvania Superior Court approved an honest and reasonable mistake rule that is a negligence mental element.

     -A few courts adopted the recklessness requirement that requires that the defendant has to be aware that there’s a risk the victim hasn’t consented to sexual intercourse.

3. Circumstance—no consent by the victim

Statistics









About Victims

44% of victims are under age 18 
80% are under age 30 

Sexual Assault Numbers
Every 2 minutes, someone in the U.S. is sexually assaulted 
There is an average of 207,754 victims (age 12 or older) of sexual assault each year 

Reporting to Police
60% of sexual assaults are not reported to the police 
15 of 16 rapists will never spend a day in jail 

About Rapists 

Approximately 2/3 of assaults are committed by someone known to the victim 
38% of rapists are a friend or acquaintance 



Sex Offenses

Common law recognized sexual offenses as rape and sodomy. Rape was limited to intentional, forced, non-  consensual, heterosexual vaginal penetration. Sodomy was anal penetration between two men. Modern courts relaxed the definition of rape, and sexual assault or criminal sexual conduct


 Wanna hear a dirty little secret?
The vast majority of  of rape victims are raped by men they know
and this brought about reformation to the elements of rape

~aggravated rape
       rape by strangers or men with weapons who physically injure their victims

~Unarmed acquaintance rape
      non-consensual sex between dates, lovers, neighbors, co-workers, employees, etc.


Positive—The judicial criminal system handles the aggravated rape cases very well.

Negative—When it comes to the Unarmed Acquaintance Rape, it is harder to put a handle on for the following reasons:  


  •         Victims tend not to report, or they do not recognize the elements of “rape” occurred.
  •     Police are less likely to believe these reports
  •         Prosecutors are less likely to charge for these types of “rape”
  •         Convictions by juries are less likely
  •         If a victim does not follow the rules of middle-class morality, the rapist is likely to not be punished