Unit 19: Rape I (Introduction)
Rusk I (CP)
Rusk II (CP)
The topic of rape is one of the most difficult and sensitive ones that you will encounter in this course. You will need to work hard to balance your understanding of the material, your application of skills (like statutory drafting and analysis), and your personal feelings toward this topic.
Grading the Offense
Rape is often viewed as the most serious non-homicide offense, often punishable by a life sentence.
Statutory rape with a very young girl is often punished as seriously as forcible rape, while statutory rape of an older girl is graded as a felony of a lesser degree.
Most modern rape statutes do not distinguish in grading between forcible rape and date rape. However, under MPC 213.1(1), nonforcible rape and acquaintance rape are graded as lesser felonies than forcible rape.
Social Perceptions of Rape
Rape is a vastly underreported crime, although most scholars agree that in recent years, the proportion of rape victims who report what happened to them has increased. It is unclear, however, if this increase in reporting is due to legislative reform of rape statutes.
Social perceptions of rape are often (if illegitimately) affected by the amount of force used, the perceived character and background of the victim, and the relationship between the victim and the perpetrator. Victims of perceived “low” moral character are sometimes blamed more than victims of “high” moral character. The modern trend toward rape shield laws addresses some of these concerns by preventing the defendant from presenting evidence of the victim’s clothing and promiscuity.
Traditional rape statutes were rooted in ancient concepts of property: a husband was thought to have a financial interest in his wife and a father had a valuable property interest in his virgin daughter. Today, rape is seen as a violent invasion of the victim’s body. Rape statutes are grounded in the idea that rape is a physical battery, and also invades a victim’s right to privacy and right to sexual autonomy.
Traditionally, rape statutes were gendered—they defined rape in terms of “vaginal penetration” so that only a female could be a victim of rape.
Traditional statutes required that the rape be “forcible,” unless (1) the perpetrator used certain forms of deception; (2) the female was incapable of giving consent (for example, because she was too young or mentally incapacitated); or (3) the female was asleep or unconscious. To satisfy the force requirement, the perpetrator must have used or threatened to use force likely to cause serious physical injury to the victim (or in some jurisdictions, to a third party), or used force sufficient to overcome the female’s resistance.
To determine if the perpetrator threatened serious force, courts traditionally applied an objective, not subjective, standard. Fear is a subjective emotion, and evidence that the female feared the perpetrator did not satisfy “threatened force.” The threat must have been some objective act by the perpetrator. However, some courts allowed a female’s unreasonable fear of force to be sufficient if the perpetrator knowingly took advantage of that fear.
If the perpetrator threatened or used force likely to cause serious physical injury, then the female was not required to resist. But if the male only used or threatened force likely to cause non-serious physical injury, then traditional rape statutes required that the female physically resist the perpetrator’s advances in a manner that demonstrated her lack of consent and caused the perpetrator to use greater force or threats of force in order to overcome her will, thus satisfying the force requirement. Like the force requirement, the resistance requirement was determined objectively.
Traditional rape statutes required nonconsensual intercourse. Nonconsent was assumed when force was proven.
Under traditional rape statutes, a husband could not legally rape his wife. This exception was based on the idea that a woman was her husband’s property, and therefore the husband “owned” the right to have sex with his wife whenever he wanted.
Questions for Review:
Q1. If you were the prosecutor in Rusk, what facts would you emphasize to constitute force? What about if you were the defendant’s attorney?
Q2. Do you think there should be differences in grading forcible rape and nonforcible rape and different forms of statutory rape? Why or why not?
Q3. Do you think consent should be viewed objectively or subjectively?