Rape

CL

Generally, sexual intercourse by a male with a female, not his wife, constitutes rape if it is committed:

1.       Forcibly

2.       By means of deception

3.       While the female is asleep or unconscious; or

4.       Under circumstances in which the female is not competent to give consent (e.g., she is drugged, mentally disabled, or underage).

Rape is a general-intent offense. As such, a defendant is guilty of rape if he possessed a morally blameworthy state of mind regarding the female’s lack of consent.

Rape

CL

Traditional Statutory Law 

Rape

CL

Modern Statutory Law 

– Many states now extend the law to specified forms of non-forcible, but nonconsensual, sexual intercourse, e.g., sexual intercourse by a male with an unconscious or drugged female.  Increasingly, rape is now defined in gender-neutral terms regarding both the perpetrator and the victim. In the most reformed statutes, the offense has been broadened to include all forms of sexual penetration; the name of the crime has been changed (e.g., "criminal sexual conduct" or "sexual assault") and the offense is divided into degrees.

Rape

MPC

A male is guilty of rape if, acting purposely, knowingly, or recklessly regarding each of the material elements of the offense, he has sexual intercourse with a female under any of the following circumstances:

1.     1.   The female is less that 10 yr. old
2.       The female is unconscious
3.       He compels the female to submit by force or by threatening her or another person with imminent death, grievous bodily harm, extreme pain, or kidnapping,; or
4.       He administers or employs drugs or intoxicants in a manner that substantially impairs the female’s ability to appraise or control her conduct.

The traditional common law rule requires proof that both the female did not consent to the intercourse and that the sexual act was "by force" or "against her will" ("resistance" requirement). Generally speaking, nonconsensual intercourse is "forcible" if the male uses or threatens to use force likely to cause serious bodily harm to the female or, possibly, a third person.  Intercourse secured by a non-physical threat does not constitute forcible rape at common law.

A minority of jurisdictions by statute or common law interpretation have abolished the resistance requirement.  Where state have retained the resistance requirement, the trend is to reduce the significance of the rule by lowering the barrier, typically requiring only that the alleged victim asserted a degree of resistance that was reasonable under the circumstances or that was sufficient to indicate that the sexual intercourse was without consent.

An extreme minority approach, applied at least in New Jersey, is that a male can be convicted for forcible rape based solely on the lack of permission for the sexual intercourse. [State in the Interest of M.T.S., 609 A.2d 1266 (1992)]

The Model Penal Code defines rape solely in terms of the male’s acts of aggression and does not require proof of resistance by the victim.

At common law, a husband could not be guilty of raping his wife.  The majority of states retain a partial exemption under which immunity does not apply if the parties are legally separated or are living apart at the time of the rape.

A minority of states maintain a total exemption for marital rape, while at least twelve states have abolished the rule. 

The Model Penal Code recognizes a partial marital exemption that bars a rape prosecution against a spouse or persons "living as man and wife," although they are not formally married.  More stringent than the majority exemption, the only exception to the marital immunity rule is for spouses living apart under a formal decree of separation. [MPC § 213.6(2)]

 At common law, the testimony of the alleged rape victim did not need to be corroborated in order to convict for rape.  However, a minority of states, by statute or case law, have instituted a corroboration requirement.

The Model Penal Code imposes a corroboration requirement. [

 If the defendant contends that the female consented to sexual intercourse with him on the occasion of the alleged rape, evidence of prior consensual sexual acts between the accused and the victim is admissible.  However, today, most states bar evidence of the alleged victim’s prior consensual sexual activity with persons other than the accused and her reputation for lack of chastity under the so-called "rape-shield" laws. 

The Model Penal Code is silent regarding the admissibility of evidence of the alleged victim’s sexual history or reputation for chastity.

Today, "statutory rape" remains an offense in most states.  Many states apply a two-level approach to this offense:  sexual intercourse with a very young girl (e.g., twelve years of age or younger) remains punishable at the level of forcible rape; intercourse with an older girl (especially if the male is older than the female by a specified number of years) is a felony of a lesser degree.

The Model Penal Code does not recognize any strict liability crimes, and thus does not recognize statutory rape, although it does punish sexual intercourse by a man with a female less than 10 years of age if he knew or should have known the female’s age.

Rape 

MPC 

1st Degree Felony

1. (a) a male who "compels" the victim "to submit by force or by threat of imminent death, serious bodily injury, extreme pain or kidnapping" is guilty of rape.

 (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 (possible fraud), or

(c) The female is unconscious; or

(d)   The female is less than 10 years old.

-omits lack of consent element, and does not comment of resistance.

-consent can be a mitigating or an aggravating element but not necessary. Same with resistance.

Verbal resistance is resistance. 

if

·         no serious bodily injury, or

·         If the victim was a voluntary social companion and had previous sexual intercourse with rapist. . 

·         if he compels her to submit by any threat that would prevent resistance by a woman of ordinary resolution (submission has to be reasonable).

·         Has sexual intercourse with a women who suffers from a mental disease or defect which renders her incapable of appraising the nature of her conduct; or

·         The victim is unaware that the sexual act is being committed upon her or mistakenly believes rapist to be her husband. 

 Unlike the common law, the Model Penal Code does not provide for rape on the basis of fraud.  However, such conduct does constitute the offense of gross sexual imposition.  Subject to the marital immunity exemption, a male is guilty of gross sexual imposition if he has sexual intercourse with a female in any one of three circumstances:

                1.)           the female submits as the result of a "threat that would prevent resistance by a woman of ordinary resolution," e.g., if the woman is threatened by a supervisor with loss of employment. [MPC § 213.1(2)(a)]

                2.)           a male has sexual relations with a female with knowledge that, as the result of mental illness or defect, she is unable to appraise the nature of his conduct. [MPC § 213.1(2)(b)]

                3.)           a male knows that the female is unaware that a sexual act is being committed upon her or that she submits because she mistakenly believes that he is her husband. [MPC § 213.1(2)(c)]