This field of criminal law is continually changing, you can determine if the changes are sufficient or if more needs to be done.
Rape (Sexual Assault) Statistics
I won’t provide the statistics because they are so vast, but it is quite terrifying to see how often this occurs. There are some complications that arise as well however with making sure that the statistics are accurate. One problem is that definitions for rape and sexual assault vary across jurisdictions making it difficult to determine what is the actual number under different definitions. For example, when the FBI changed its definition, rape had increased, but under the old definition, it was actually down by 10.6%.
There are also issues with reporting. Several statistics rely on instances where the event was reported. Several people fail, and several police departments are inconsistent with reporting these instances.
Often times, these reports also don’t include the assault directed towards men. True, the assault is on a lessor level, but it does happen and it is quite possible that men are reporting less than women are.
Susan Estrich — Rape
95 Yale Law Journal 1087 (1986).
This article argues that legal application of rape is a racist and sexist application. Her article only focuses on the sexist part saying that the rules were created by men to play a “boy’s game”. In other words, because the rules were created by men, women were subject to those rules often in their disfavor.
The notes carry this into racism where black men were accused of rape by white women and punished terribly for false accusations (see the Scottsboro story). Additionally, it continued to where white men would take advantage of black women, especially during the slavery period of American history (but continued afterwards).
Finally, the notes ask why does the law prohibit rape? Is it because in essence there is a battery? Or is it because we want to protect bodily autonomy?
Dressler — Where we have been, and where we might be going: Some Cautionary Reflections on rape law reform
46 Cleveland State Law Review 409 (1998).
There is this conflict when it comes to rape reform. On one hand, there is still a need to protect and defend women as well as an expansion of police powers in making arrests. On the other hand, how do we reconcile those circumstances where one person has felt the affects of sexual assault or rape and then is in the position of defending those accused of those very crimes?
Traditional Approach: Forcible Rape
“Rape is the carnal knowledge of a woman forcibly and against her will.”
This is a common law approach.
Alabama Statute Approach
- Forceable compulsion
- Against someone who is helpless or mentally incapacitated
- Someone who is older than 16 against someone under 12
- 16 or older against someone over 12, but not within two years of age.
- Against someone who is mentally defective
- Impaired the person’s power to control conduct (i.e. drugs, etc.)
- Against unconscious
- Less than 10 years old
Gross Sexual Imposition
- Threat to prevent resistance by ordinary resolution
- Knowledge of suffering from mental disease
- He knows that she is unaware that he is not her husband (even if she believes that he is).
Force and non consent
State v. Alston
310 N.C. 399 (1984).
Convicted of Second degree rape.
Whether the evidence was enough to support a conviction of rape
Second degree Rape requires:
- Against the will of the victim
Although against the will of the defendant, there was insufficient evidence of force.
Defendant and victim had been in a prior relationship and she wanted to break it off but had not done so before the day in question. On the day in question, the defendant met the victim, walked and talked, broke up, and went to a friend’s house where the victim knew he wanted to engage sexually. She said that she did not want to, but did not resist.
The state produced ample evidence to say that the victim did not provide consent. However, the actions of grabbing the victim by the arm earlier in the day, unrelated to the act, which caused fear in the victim was not sufficient to meet the element of force or threat of force.
See the complexities with this case? One commentator says that she had been emotionally beaten down previously rendering her unable to resist. Wouldn’t that constitute force? Another commentator argues that although they are sympathetic, there is a fear that by expanding the term rape to include those who cried in the act could lead to damaging the cause of women in general (being too understanding, we don’t want the law to patronize women.).
To demonstrate rape, both the elements of “force” and “against the victim’s will” needs to be met.
When there is a prior relationship, to show lack of consent, you need to show something very specific: “Evidence of statement or actions by the victim which were clearly communicated to the defendant and which expressly and unequivocally indicated the victim’s withdrawal of any prior consent and lack of consent to the particular act….” In other words, when there is a case where there is a prior relationship, the previous consent needs to be withdrawn by saying “no” at this particular action.
However, if it is a result of fear, then any consent is not valid.
There is a difference between actual and constructive force:
Actual: Actual physical force
Constructive: Threat of force
Here, there was no force because the earlier force (grabbing her arm at the school) was unrelated to the event. The threat must overcome the will of the victim, because there was no other threats at the house.
43 states have this second element of force, including Iowa in statute 709.1
Big takeaway: The force must be related to the act, a pattern of force in the past is insufficient to prove the element.
The Resistance Requirement
The level of force needed to convict.
Rusk v. State
43 Md. App. 476 (1979). Court of Special Appeals, Maryland
Rape of second degree and of assault (no challenge for assault)
Was there sufficient evidence for rape.
Rape conviction requires force. Force is:
“an essential element of the crime and to justify a conviction, the evidence must warrant a conclusion either that the victim resisted and her resistance was overcome by force or that she was prevented from resisting by threats to her safety.”
Not sufficient evidence. Conviction reversed.
The victim had been recently separated from her husband and went to the bar with a friend (drove separately). She met a guy who asked for a ride home. She accepted and when they arrived at his place he asked her to come inside with him. When she refused, he grabbed her keys and once again insinuated for her to go inside with him. Seeing nowhere to go, she agreed. Inside, she once again asked to leave and he refused. He grabbed her throat “lightly” and she asked if he would let her go if she did what he asked. Afterwards, she felt a need to report the incident.
According to the majority, there was no force or threat of force. The only thing that could have been seen as forceful was the grabbing of the throat, which could have been done as a caress rather than a choking.
The dissent disagrees (got the rule right but not the application) saying that the court construed consent and force as the same thing. Because she did not resist, there was no force according to the majority. However, her resistance could have been and was verbal. There would have been no doubt that if he had stolen her wallet instead, that would have been a crime. This is far more serious, yet the majority saw it fit not to call it a crime. This should have been a question for the jury. Because the jury said that this was rape, this was rape.
Second degree rape, under this statute is “by force or threat of force” and no consent.
He does not respond to the question, “If I do what you want, will you let me go without killing me?” he “lightly choked her before she asked, “If I do what you want, will you let me go?”
Force can be shown it two ways here:
- Victim resisted and was overcome by force
- Victim is prevented from resisting by the threats to her safety
From the prosecution’s view, the fact that she was stranded and felt like she had to go inside is a jury question to decide. From the defendant’s view (and the majority here), there was no force. First, this is because there was no actual resistance. Second, there were no explicit threats on her life, this is because he did not respond.
The dissent says that there is a confusion before lack of consent and force. We need to focus on the defendant’s actions, not the victims. So to have a requirement of resistance is unreasonable. This is because women often get hurt in the act of resisting. Rape needs to focus on the actions of the defendant, not the lack of acting on the victim.
So was force established? Taking the car keys, did not know the area, the light choking, verbal resistance.
State v. Rusk
289 Md. 230 (1981). Court of Appeals
Note that this is the appeal from the court of special appeals
Did the court of special appeals get it right?
The court agrees with the dissent that the reasonableness of her apprehension was one for the jury to determine.
However, the dissent disagreed saying that her resistance needs to be more than saying, “I was really scared.” The dissent says that she must resist until the “defendant has objectively manifested his intent to use physical force to accomplish his purpose.”
There is a conflict on how much resistance there is to be done, for instance:
- On one hand, if a women’s virtue is so valuable, why doesn’t she resist like it’s life and death to protect such as biting, kicking, hitting, etc. Courts taking this approach often need to see evidence of harm (bruises) to sustain a rape charge.
- On the other hand, should there be a resistance requirement at all? If there is such great fear, a person would oblige, even if there was total lack consent.
In favor of the majority – The requirement of second degree rape is force and lack of consent. If there is no resistance, there is no way of showing force. Taking out the resistance requirement makes this no longer second degree rape.
In favor of the dissent – The focus should be on the defendant, not the victim. Therefore, there should not need to be this distinction between consent and force.
Why do we have the force requirement?
- Divide “forcible rape” and “nonconsensual intercourse”
- Force makes the act clear that it was not consensual
- Resistance puts the defendant on notice to shows mens rea
Why shouldn’t we have it?
- Puts women in danger
This is the distinction between the threat of force and the fear of force. The reason why force was deemed insufficient in the lower court was because of this distinction (requires actual threat, not just fear).
The content contained in this article may contain inaccuracies and is not intended to reflect the opinions, views, beliefs, or practices of any academic professor or publication. Instead, this content is a reflection on the author’s understanding of the law and legal practices.