Students' Page > Criminal Law > Unit 10

Criminal Sexual Conduct

• Historically, the criminal law recognized only two crimes of sexual conduct—rape and sodomy.
• At common law, rape was defined as forced heterosexual penetration; sodomy meant consensual homosexual conduct.
• Modern court opinions have relaxed the definitions of rape, and statutes have expanded criminal sexual conduct so that now it embraces a wide range of nonconsensual penetrations and contacts that fall short of violence.
• Furthermore, pubic attention and criminal justice agencies have gone beyond their prior narrow focus on rape by strangers—the classical stereotype.
• Another type of rape—long unacknowledged and therefore virtually unknown except to its victims and perpetrators—has come to public attentions.
• Public attention in turn has brought changes in both the law of rape and the criminal justice response to it: This is rape of women by men they known, commonly called date rape.
• Today it is widely accepted that there are two kinds of rape.
• The first our text refers to as aggravated rape: stranger rapes which involve weapons and injury.
• The second kind the author refers to as unarmed acquaintance rape, which is more commonly referred to as "date rape."

How Good of A Job Does the CJ System Do?

• The CJ system does a pretty good job of dealing with aggravated rapes, but not such a good job when dealing with date rape.
• There are several reasons for this.
• Victims are not likely to report date rapes, or even recognize them as rapes.
• If victims report them, the police are less likely to believe the victims of unarmed acquaintance rape than the victims of aggravated rape.
• Prosecutors are less likely to charge unarmed acquaintance rapists, and juries are less likely to convict them.
• Finally, unarmed acquaintance rapists are more likely to escape punishment if their victims don’t follow the rules of middle-class morality—people tend to blame the victim rather than the rapists when here morals are questioned by society.
• The problem of date rape is made worse by the fact that the overwhelming majority of rapes are date rapes.

History of Rape

4 Elements

Thus the common law definition had four elements:

1. Intentional sexual intercourse
2. Between a man and a woman who is not his wife
3. Achieved by force or threat of severe bodily harm
4. Without the woman’s consent

The common law required that all four elements be proved beyond a reasonable doubt.

Most of the time, the state’s primary witness was the victim.

Credibility of the victim was determined by three factors:

• The chastity of the victim
• Prompt reporting of the rape by the victim
• Corroboration of the rape by witnesses other than the victim.
• This standard made rape convictions very difficult to obtain.

Force and Resistance Standards

• From seventeenth century England to the 1970s in the US, the law of rape concentrated on the element of consent.
• Women had to prove by their resistance that they didn’t consent to the unwanted sexual advances.
• Proof of nonconsent by resistance is peculiar to the law of rape.
• In no other crime where lack of consent is an element of the crime does the law treat passive acceptance as consent.
• The amount of resistance required to prove lack of consent has changed over time.
• From the Nineteenth century until the 1950s, the utmost resistance standard prevailed.
• According to this standard, women had to use all the power at their command to physically resist.
• Strict as the utmost resistance standard was, the law didn’t require physical resistance in all cases.
• Intercourse where a woman who is incapacitated by intoxication, mental deficiency, or insanity was regarded as rape regardless of whether the perpetrator used force or the victim consented.
• Sexual penetration by fraud is not rape so long as the fraud relates to the giving of consent and not the nature of the act.
• Also, sex with a minor who consented and did not resist was still rape.
• In the 1950s, the courts began to relax the utmost resistance test.
• Its replacement, the reasonable resistance standard, allowed for differences in the amount of resistance required.
• According to this standard, the totality of the circumstances in each case determines how much a victim has to resist.
• For example, the Virginia Supreme Court ruled that a "woman is not required to resist to the utmost of her physical strength if she reasonably believes that resistance would be useless and result in serious bodily injury.

Rape Law Reforms

• The 1970s and 1980s were a time of major rape law reform.
• In the procedural law of rape, many states abolished the requirement that the prosecution has to provide corroboration of rape victims’ testimony.
• In addition, most states passed rape shield statutes, which prohibit introducing evidence of victims’ past sexual conduct.
• Many states also relaxed the requirement that prohibited prosecution unless women promptly reported rapes.
• A few states abolished the marital exception.

Changes to Substantive Law

• States have also made changes in the substantive law of rape.
• Criminal sexual conduct statutes have shifted the emphasis away from consent of the victim.
• For Example, the Pennsylvania Superior Court decided that the emphasis on consent had "worked to the unfair advantage of the women who, when threatened with violence, chose quite rationally to submit to her assailant’s advances rather than risk death or serious bodily harm."

Elements of Modern Rape

• Most states define rape as intentional sexual activity with another person by force and without the other person’s consent.
• So, rape in most jurisdictions consists of four elements:
• The actus reus of sexual penetration between perpetrator and victim
• The actus reus of the use of force, or threat of force, by the perpetrator as the means to accomplish the sexual penetration
• The circumstance of nonconsent of the victim
• The mens rea of intentional sexual activity

The Actus Reus of Rape

The rape actus reus consists of two elements:

1. Sexual Penetration
2. By force or threat of force

• Sexual penetration has never meant full sexual intercourse to emission, and it still does not.
• The common-law phrase "penetration however slight" still describes the modern requirement.

Was Penetration Accomplished by Force?

Courts have adopted two standards to determine whether penetration was accomplished by force:

1. Extrinsic force standard
2. Intrinsic force standard

The extrinsic force standard requires some force in addition to the physical force necessary to accomplish penetration.

The intrinsic force standard requires only the amount of force necessary to accomplish penetration.

Actual v. Threatened Force

• Actual force isn't required to satisfy the force requirement.
• The threat of force is enough.
• The prosecution has to prove two things about the threat:
• The victim was placed in real fear of imminent and serious bodily harm
• The fear was reasonable under the circumstances.
• Brandishing a weapon satisfies the requirement.
• So do verbal threats, such as threats to kill, seriously injure, or kidnap.
• But the threat doesn’t have to include showing weapons or express words.
• Courts can consider all of the following in deciding whether the victim’s fear was reasonable:

1. Respective ages of the perpetrator and the victim
2. Physical sizes of the perpetrator and the victim
3. Mental condition of the perpetrator and the victim
4. Physical setting of the assault
5. Position of authority, domination, or custodial control of the perpetrator over the victim

Not even the threat of force is necessary when the victim doesn't have the legal ability to consent, such as minors and those with mental diseases and defects.

Mens Rea in Rape

The Element of Nonconsent

• According to the law, the prosecution has to prove beyond a reasonable doubt that the victim didn’t consent to sex.
• Practically speaking, consent almost always arises as a defense to rape.
• In the typical case, defendants claim either that their victims consented or that defendants mistakenly believed they consented.
• The problem is that in the normal course of events, people don’t generally announce their consent in writing.
• Consent can be and often is indicated by actions and not words.

Statutory Rape

• Statutory rape means having sex with minors.
• Statutory rapists don’t have to use force; the victim’s immaturity takes the place of force.
• Furthermore, nonconsent is not an element, nor is consent a defense because minors can’t legally consent to sex.
• In other words, statutory rape is a strict liability crime.
• A few states, such as Alaska and California, do permit the defense of mistake.
• The defense applies if a man reasonably believes that his victim is over the age of consent.
• In other words, negligence is the required mens rea.

Criminal Sexual Conduct Statutes

• In the 1970s a combination of civil rights activists, feminists, and some criminal law reformers raised a strong and unified voice for abolishing existing rape laws.
• In their place, they recommended that legislatures create a group of new, gender-neutral offenses that would emphasize the aspects of violence and invasion of privacy more than the erotic nature of sexual assault.
• Some states have done this, enacting what are called sexual conduct laws.
• These statutes tend to cover all violent and otherwise offensive sexual penetrations and contact without regard to the gender of the victims and offenders.

Grading Rape

• 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.

Assault and Battery

• Assault and battery, although combined in most modern statutes, were distinct offenses at common law.
• A battery is an unjustified offensive touching.
• An assault is either an attempted or threatened battery.
• The essential difference between assault and battery is that assault requires no physical contact; an assault is complete before the offender touches the victim.

The Elements of Battery

• The actus reus of battery consists of offensive touching.
• Not all offensive touching is battery.
• Spanking children is offensive, at least to the child, but it’s not battery.
• This is because the law recognizes it as a justified act of disciplining children.
• So, only unjustified offensive touching is battery.
• Unjustified offensive touching covers a wide spectrum.
• Brutal attacks with baseball bats, kicking with heavy boots, and staggering blows with fists obviously fall within the scope.
• At the other extreme, some courts have included spitting in the face of someone you want to insult.
• Modern law doesn’t clearly specify the battery mens rea.
• At common law, battery was an intentionally inflicted injury.
• Modern statutes have extended the mens rea to include reckless and negligent contacts.

Grading Battery

• Battery requires some injury.
• Batteries that cause minor physical injury or emotional injury are misdemeanors in mast states.
• Batteries that cause serious bodily injury are felonies.

The Elements of Assault

• Assault includes two types of offenses: attempted batteries and threatened batteries.
• Attempted battery assault consists of the specific intent to commit a battery and substantial steps toward carrying out the attempt without completing it.
• Threatened battery assault, sometimes called intentional scaring, requires only that actors intent to frighten their victims, thus expanding assault beyond attempted battery.
• Threatened battery doesn’t require the intent to actually physically injure their victims, the intent to frighten victims into believing the actor will hurt them is enough.
• Victims’ awareness is critical in threatened battery assault.
• Specifically, victims have to reasonably fear immediate battery.
• Words alone aren’t assaults; threatening gestures have to accompany them (of course, this isn't always fair)
• Conditional threats are not enough because they are not immediate.
• Both threatened and attempted battery assaults address to somewhat distinct harms.
• Attempted battery assaults deal with incomplete (inchoate) physical offenses.

Aggravated Assault

• Historically, all assaults were misdemeanors.
• However, modern statutes have created several aggravated (felony) assaults.
• Most common are assaults with the intent to commit violent felonies such as murder, rape, and robbery.
• Also, assaults with deadly weapons and assaults on police officers are often made felonies.

False Imprisonment

1. Liberty: The right to come and go as we please.
2. Privacy: The right to be left alone by the government.

• Some states have enacted false imprisonment statutes to protect against invasions of these rights.
• False imprisonment is a specific intent crime.
• The prosecution has to show that the defendants intended to take away their victims’ liberty forcibly and unlawfully.
• Most forcible detentions or confinements are false imprisonments under existing law.
• This does not include restraints authorized by law, like when police officers lawfully arrest suspects, parents restrict their children’s activities, or victims detain their victimizers.
• The model penal code requires the restraint to "interfere substantially with the victim’s liberty."
• Although physical force is often used to accomplish the detention, it is not essential; threatened force is enough.
• Threatening someone into cooperation is enough.

Kidnapping

• Like false imprisonment, kidnapping invades someone’s privacy and takes away their liberty.
• You can think of kidnapping as aggravated false imprisonment.
• Originally, kidnapping was the "forcible abduction or stealing away of man, woman or child from their own country."
• Although kidnapping was only a misdemeanor, Blackstone called it a "heinous crime" because "it robs the king of his subjects, banishes a man from his country, and may in its consequences be productive of the most cruel and disagreeable hardships."

Common Law Elements

At common law, the main elements of kidnapping were

1. Seizing,
2. Confining, and
3. Carrying away (asportation)
4. Another person
5. By force, threat of force, fraud, or deception

• The critical difference between false imprisonment and kidnapping is the carrying away, or asportation, of the victim.
• Unlike in Blackstone's time, modern statutes have made the asportation requirement almost meaningless.

Grading Kidnapping

• Kidnapping is often divided into two degrees: simple and aggravated.
• The most common aggravating circumstances include kidnapping for the purpose of:
• Sexual invasion, obtaining hostages, obtaining ransom, robbing the victim, murdering the victim, blackmail, terrorizing the victim, and obtaining political aims.

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