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