Rape And Sexual Offenses Outline

SECTION FOUR: RAPE & SEXUAL OFFENSES

Part One: Sexual Offenses

1. @Rape & Sexual Assault

   1. Rule

      1. (MPC)

         1. Δ is guilty of rape if

            1. Δ has sex with female not his wife and

               1. Δ compels her to submit by force or by threat of imminent death, SBI, extreme pain or kidnapping,

               2. Δ has substantially impaired her power to appraise her conduct via drugs or intoxicants, or

               3. she is unconscious (§213.1).

         2. Δ is guilty of gross sexual imposition if

            1. Δ has sex with a female not his wife and

               1. Δ compels her to submit by any threat that would prevent resistance by a woman of ordinary resolution,

               2. Δ knows she suffers from a mental disease, or

               3. Δ knows she is unaware of the sexual act (§213.1(2)).

         3. Δ is guilty of sexual assault if

            1. Δ has sexual contact with another not his spouse and

               1. Δ knows that the contact is offensive to the other person (§213.4).

      2. (CL)

         1. Δ is guilty of rape if

            1. Δ has sex with other person,

            2. Δ compels her to submit by force or threats, i.e. she resists, and

            3. she does not consent (C. v. Lopez (Mass. 2001)).

         2. Δ is guilty of sexual assault if

            1. (majority)

               1. Δ has sex with other person,

               2. Δ causes her to submit, by coercion or use of force and

               3. she does not consent (Mlinarich).

            2. (minority)

               1. Δ has nonconsensual sex without force but with lack of consent (M.T.S.).

   2. Analysis

      1. Female?

         1. Under MPC, nonconsensual sex with a man is called “Deviate Sexual Intercourse by Force or Imposition” (§213.2).

      2. Force?

         1. Force is essential to rape (Rusk), and includes overpowering fear.

         2. Typically is physical force, not coercion (Thompson).

      3. Resistance?

         1. (majority)

            1. Implied within force requirement and consent requirement (Alston).

      4. Consent?

         1. (majority)

            1. If victim does not consent, she must communicate this in some objective manner, i.e. via resistance (P. v. Warren (Ill. 1983)).

            2. Lack of resistance is evidence of consent (Alston).

         2. (minority)

            1. If victim does not indicate her consent and she did not consent, Δ is liable for rape

               1. (minority)

                  1. even if Δ honestly and reasonably believes victim consented (Sherry)(C. v. Simcock (Mass. App. 1991);

                  2. even though mistake of fact is not a defense, subjective culpability is inherent in the force requirement (Lopez).

      5. Coercion / woman of ordinary resolution?

         1. Applies to

            1. victim who had crush on Δ (Meadows).

            2. drifter who Δ threatened to kick out of home and fire (Lovely).

   3. Cases

      1. S. v. Rusk (Md. 1981, 302)

         1. Δ drove with victim home. Took her keys, coerced her to have sex, and engaged in “light choking.” The difference between persuasion and force is a question of fact, but since jury found force, Δ is guilty.

         2. (Cole, dissenting): nothing different here from ordinary seduction, with no evidence of force.

      2. In re M.T.S. (N.J. 1992, 318)

         1. Δ engaged in nonconsensual sex with victim. N.J. statute: sexual assault is nonconsensual sex via coercion or physical force. Since physical force is implied in nonconsent, Δ is guilty of sexual assault.

      3. Commonwealth v. Sherry (Mass. 1982, 342)

         1. Three doctors (Δs) took victim to home, got naked, and had nonconsensual sex with her. They mistakenly thought she consented, but because she did not, they are liable for rape.

      4. Squibs

         1. S. v. Gangaher (Neb. 2000)

            1. Undercover female cop said “no,” but Δ tried to sexually assault her. Not rape or attempted since jury was not instructed to consider whether victim’s refusal was “genuine.”

         2. S. v. Thompson (Mont. 1990)

            1. HS principal not guilty of sexual assault for compelling student to have sex with him or not graduate since he did not use force.

         3. S. v. Alston (N.C. 1984)

            1. Victim “unequivocally” nonconsented, but since Δ didn’t use force and Δ undressed herself and spread her legs, Δ is not guilty of rape.

         4. C. v. Mlinarich (Pa. Super. Ct. 1985)

            1. no force when 14 y/o’s guardian threatened to kick her out if she did not have sex with him.

         5. C. v....

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