Criminal Sexual Conduct - Criminal Law - Lecture Slides, Slides for Criminal Law. English and Foreign Languages University
asgari7 February 2013

Criminal Sexual Conduct - Criminal Law - Lecture Slides, Slides for Criminal Law. English and Foreign Languages University

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It is the Lecture Slides of Criminal Law which includes Inchoate Crimes, Conspiracy and Solicitation, Finished Committing, Crime Intended, Dilemma Inchoate, Free Societies, Inchoate Offenses etc. Key important points are...
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Chapter Ten

Chapter Ten

Crimes Against Persons: Criminal Sexual Conduct, Bodily

Injury, and Personal Restraint

Chapter Ten Learning Objectives

• Understand that crimes against persons boil down to four types: taking a life; unwanted sexual invasions, bodily injury; and personal restraint.

• Understand that voluntary and knowing consensual behavior between two adults is legal, healthy and desired.

• Understand that the vast majority of rape victims are raped by men they know.

Learning Objectives (cont.)

• Understand that during the 1970s and 1980s sexual assault reform changed the fact of criminal sexual assault law.

• Understand that force beyond that required to complete sexual penetration or contact is not always required to satisfy the force requirement in rape.

• Understand that rape is a general intent crime. • Understand that statutory rape is a strict liability

crime in most states.

Learning Objectives (cont.) • Understand that assault and battery are two

separate crimes.

• Understand that domestic violence since the early 1970s has been transformed from a private concern to a criminal justice problem.

• Understand that stalking, although an ancient practice, is a new crime.

• Understand that kidnapping and false imprisonment violate the right of locomotion.

Sex Offenses

• Originally, criminal law recognized only – Common law rape

• Intentional, forced, nonconsensual, heterosexual vaginal penetration (by a non-spouse)

Common law sodomy • Anal intercourse between two males

• Modern opinions relax definitions of rape – Sexual assault or criminal sexual conduct statutes

of the 1970s and 1980s have expanded the definitions.


• Vast majority of rapes are committed by acquaintances

• Aggravated rape (in this chapter) = – Rape by strangers or men with weapons who

physically injure victims

Unarmed acquaintance rape – Nonconsensual sex between dates, lovers,

neighbors, co-workers, employers

Criminal Justice Response to Rape

• Good at dealing with aggravated rape • Not so good at dealing with acquaintance rape

– Victims less likely to report – Police less likely to believe – Prosecutors less likely to charge – Jurors less likely to convict – Unarmed acquaintance rapists are likely to escape

punishment if victims don’t follow middle-class morality rules

• Many rapes are committed by men against men

History of Rape Law

• Common Law rape – Carnal knowledge of a woman forcibly against her

will • Sexual intercourse by force or a threat of severe bodily

harm (actus reus) • Intentional vaginal intercourse (mens rea) • Intercourse between man and woman not his wife

(attendant circumstance) • Intercourse without woman’s consent (attendant


History of Rape Law (cont.)

• Rape was a capital offense • Rape victims were allowed to testify against

rapist • Rape victims credibility was determined by

– Chastity – Prompt reporting – Other witness corroboration

Criminal Sexual Conduct Statutes

• Transformation 1970s and 1980s • Abolished the corroboration rule • Enacted rape shield statutes • Relaxed prompt reporting rule • Most states abolished the marital rape

exception • Shift of emphasis from nonconsent of victim

to unwanted advances of perpetrator


• Eliminated consent as an element in rape • Recognized difficulty in drawing the line

between forcible rape and reluctant submission

Sexual Assault Statutes • Arose in 1970s and 1980s • One comprehensive statute • Expanded definition of rape to include all sexual

penetrations • Created less serious crime of sexual contact • Sex offenses made gender-neutral • Seriousness of offense graded by criteria

– Penetrations more serious than contacts – Forcible penetrations and contacts are more serious than simple

nonconsensual penetrations and contacts – Physical injury to victim aggravates the offense – Rapes involving more than one rapist, “gang rapes” are more

serious than one single rapist

Elements of Modern Rape law

Actus reus – sexual penetration by force or threat of force

Mens rea- intentional sexual penetration • Circumstance –non consent of the victim

Rape Actus Reus

Force and Resistance rule – No force if victims consented – Historically in practice victims had to prove they

hadn’t consented • Resistance showed nonconsent • Reynolds v. State (1889) • Proof of nonconsent is peculiar to rape

– Default position is consent

Rape Actus Reus (cont) – Amount of resistance required has changed over time

Utmost resistance standard (resist with all the power they had)

– Brown v. State- (1906) – Casico v. State –resist to utmost with most vehement exercise of

every physical means…. • Reasonable resistance rule (look at the totality of the

circumstances) – Jones v. State (1984)

• Many new statutes have dropped the resistance requirement entirely.

– But resistance may be needed to show force in acquaintance rapes.

– Jones v. State (1992)

Force Requirement

Extrinsic Force approach: – Requires some act of force in addition to the

muscular movements needed to accomplish penetration

• Commonwealth v. Berkowitz

Intrinsic Force approach – Requires only the amount of physical effort

necessary to accomplish penetration • State in the interest of M.T. S.

Case: Commonwealth v. Berkowitz

• Facts

• Issue

• Holding

Case: State in the Interest of M.T.S

• Facts

• Issue

• Holding

Summary of case holdings

• Berkowitz demonstrates the extrinsic force approach. – “Where there is a lack of consent, but no showing of

either physical force, a threat of physical force, or psychological coercion, the “forcible compulsion” requirement . . . is not met.”

– “The degree of physical force, threat of force, or psychological coercion . . . Must be sufficient to prevent resistance by a person of reasonable resolution, but the “peculiar situation” of the victim and other subjective factors should be considered by the court in determining resistance, assent, consent.”

(cont.) • MTS highlights the intrinsic force approach • “We conclude. . . That any act of sexual

penetration engaged I by the defendant without the affirmative and freely given permission of the victim to the specific act of penetration constitutes the offense of sexual assault”

• The element of physical force was met simply by an act of nonconsensual penetration involving no more force than necessary to accomplish the result

Threat of Force

• Actual use of force isn’t required to satisfy the force requirement, the threat of force is enough

• Must show – Subjective fear (victim honestly feared imminent and

serious bodily harm) – Objective fear (fear was reasonable under the


• Social science research on harm to resisting victim

Exceptions to the force and resistance rule

• Deception can substitute for force – Fraud in fact = tricking victim into believing that

the act she consented to was not sexual intercourse

• Moran v. People – Fraud in the inducement (does not substitute for

force) = getting victims consent to sexual intercourse by fraudulent means (there was consent, so no rape)

Rape Mens Rea

• Rape is General Intent Crime • Defendants have the criminal intent when

they intend to have intercourse • Mens rea concerning the attendant

circumstances may vary by statute

Mens Rea re: Attendant circumstance of nonconsent

– Continuum of mens rea • Some states adopt strict liability. As long as offender intended to have

intercourse, if the victim did not consent it is rape (regardless of whether offender reasonably thought he/she consented or not).

– Commonwealth v. Fischer • Some states have adopted a negligence standard. If the offender had a

reasonable and bona fide belief that the victim consented, there is no rape. (If the defendant was not aware but should have been, then he/she is said to be negligent as to the attendant circumstance, and it will be rape)

• Some states have adopted a reckless standard. The defendant has to be aware that there is a risk that the victim hasn’t consented to sexual intercourse and nevertheless disregard that risk for the offense to be rape

– Regina v. Morgan – Critics argue that, due to the severe penalties, the standard should be

knowing. (Defendants must know that the victim did not consent)

Statutory Rape

• Having sex with minors • Age of victim substitutes for force

requirement • Nonconsent is not an element • Consent is not a defense because minors

cannot give consent (legally incompetent to consent)

• Some states allow for reasonable mistake of age

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