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