Unit 21: Rape III (Reform Efforts and MPC)


  • Dressler 570-74

  • M.T.S. (CP)

  • Williams (CP)

Key terms: 

  • fraud in the inducement

  • fraud in the factum

  • statutory rape


Modern courts and legislatures have engaged in several reform efforts related to the crime of rape. The modern trend defines both the perpetrator and the victim in gender-neutral terms, and broadens the offense to include all forms of sexual penetration.  Some jurisdictions rename the offense “sexual assault” to capture these variations. Modern statutes generally do not recognize a marital exception, and do not impose fresh-complaint requirements.

The modern trend abandons or diminishes the force requirement. Some courts have essentially abolished the force requirement by holding that it is satisfied by the force required to complete the act, although other courts still hold there must be force sufficiently different from that force normally inherent in sexual acts. Some courts have also redefined force to include nonphysical coercion.

The modern trend softens the resistance requirement, which has been criticized by feminist scholars for two major reasons.  First, although some women respond to rape with active resistance, others freeze out of panic and fear. Second, resisting a rapist can be dangerous and increases the risk of injury; indeed, some women have been taught to remain passive when facing a rapist.

Many states with reformed rape statutes, rather than require resistance to the utmost, now instead require earnest resistance, reasonable resistance, or resistance that demonstrates nonconsent and the use of force. A few states have completely abolished the resistance requirement. However, resistance still retains evidentiary significance, and a lack of resistance can be used to argue consent.

As the resistance and force requirements are softened or abolished, consent becomes a more central and complicated issue. When, for example, is consent “freely given”?  Scholars have suggested several possible rules. One possibility is that permission is not freely given if it is the result of an illegal or tortious act, regardless of whether that act actually has a coercive effect. Another suggestion is that permission is not freely given if it results from a threat that could cause a reasonable person to give permission (e.g., a boss threatening to fire an employee unless she has sex with him). A third approach is similar to the previous one, but includes both threats and offers (an example being a boss who offers to give an employee a raise if she has sex with him).

Another issue raised under modern rape statutes is what actions and verbal conduct should constitute consent. Courts and legislatures must consider if “no” always means no, and how long verbal permission or denial remain in effect.  In jurisdictions with an objective approach to consent, courts must also decide whether the burden is on the perpetrator to obtain affirmative consent or the victim to deny permission. Further, consent or nonconsent can be manifested in terms of verbal actions or conduct, which raise issues as to what conduct constitutes affirmative consent and what conduct constitutes nonconsent. For example, the New Jersey Supreme Court ruled in M.T.S. that although the victim was making out with the perpetrator consensually, there was no evidence that she had consented to the specific act of sexual penetration.


Fraud-in-the-inducement occurs when the perpetrator obtains the victim’s consent through deception and false pretenses, but the victim knows that she is consenting to sexual intercourse. Traditional rape statutes do not invalidate consent due to fraud-in-the-inducement, as the victim consented to the sexual act itself.

Fraud-in-the-factum occurs when consent is obtained through deception and the victim is unaware that she has consented to sex. Consent given under this scenario is invalid as the victim did not actually consent to the sexual act. Although some courts have held that a man who tricks a woman into believing that he is her husband or lover is fraud-in-the-inducement, others have held that it is fraud-in-the-factum, as the attendant circumstance of the male being the female’s husband or lover is a fundamental aspect of the sexual act itself.

There are policy questions of whether to punish fraud-in-the-inducement. On the one hand, if the law of rape is meant to protect a woman’s sexual autonomy, perhaps fraud-in-the-inducement should be punished the same way that fraud in the business context is punished. On the other hand, recognize fraud-in-the-inducement as rape could result in many prosecutions over failed relationships where the perpetrator claimed love or promised marriage. Some argue that fraud-in-the-inducement cases where the perpetrator claims that he is sterile or disease-free should be redressed through civil suit or prosecuted as other criminal offenses such as battery, but not as rape.

Mens Rea

In jurisdictions not influenced by the MPC, rape is a general-intent offense. The defendant must have a morally blameworthy state of mind regarding consent, but he does not need to specifically intend for the intercourse to be nonconsensual. In general, mens rea is not satisfied if the defendant genuinely and reasonably (subjectively and objectively) believed that the victim consented.

Some jurisdictions have held that mistake of fact as to consent is never a defense, no matter how reasonable, effectively converting rape into a strict liability offense.

Model Penal Code

Under MPC 213.1, rape is gender-specific and the marital exception applies if the couple are living as husband and wife and are not separated. However, the MPC definition of rape is also broader than traditional rape statutes in some respects. The term sexual intercourse is defined broadly to include all genital, oral, and anal sexual penetration by the perpetrator under MPC 213.0(2). Nonconsent and resistance are not required elements, but they do hold evidentiary significance. Under MPC 213.1, force is required, but broader than under traditional rape statutes; the MPC requires force or threat of serious bodily injury, death, extreme pain, or kidnapping to the victim or to a third party.

Under MPC 213.2(a), a man is guilty of gross sexual imposition if the man uses a nonphysical threat that would cause a woman of “ordinary resolution” to submit to intercourse. Obtaining consent by fraud-in-the-factum (but not fraud-in-the-inducement) also constitutes gross sexual imposition, and under MPC 213.2(c) pretending to be the woman’s husband satisfies gross sexual imposition as well. A man can also be guilty of gross sexual imposition if he knows that the female has a mental illness or some defect which makes her unable to appraise the nature of her conduct under MPC 213.2(b).

Under MPC 213.6(5), a rape or gross sexual imposition conviction cannot be sustained if the only evidence is the testimony of the victim; there must be corroborating evidence. Under MPC 213.6(4), a victim sixteen or older must file a complaint with the public authorities within three months of the incident in order to sustain a conviction.

MPC 213.4 punishes “sexual assault” as a misdemeanor. This includes “sexual contact,” the touching of any sexual or intimate parts of the victim for the purpose of arousing or gratifying sexual desire, where the perpetrator knows that the sexual contact is offensive to the victim, the victim is unaware of the sexual contact, or the victim is unable to appreciate the offensiveness due to mental illness or young age. The marital exception applies.

The mens rea for rape and gross sexual imposition is not defined in MPC 213.1, so MPC 2.02(1) applies. The defendant must be purposeful, knowledgeable, or reckless to each of the material elements in order for the mens rea requirement to be satisfied.

Questions for Review:

Q1. One of the goals of modern rape law is to protect sexual autonomy. Some scholars have argued that if a person is not required to say “no” when a thief takes her property, then she should not be required to object to another’s sexual advances. However, others have criticized MTS and the “yes” requirement. Which standard of consent best satisfies the goals of protecting sexual autonomy? Requiring a yes through words or conduct? Requiring a no? Somewhere in between? Consider the facts of MTS when forming your answer.

Q2. Do you think a man tricking a woman into believing he is her husband or boyfriend should be classified as fraud-in-the-factum or fraud-in-the-inducement? Why?

Q3. Do you think mistake of fact should negate mens rea and be a defense to rape? If yes, should mistake of fact be evaluated subjectively, objectively, or both? Why? Consider the goals of rape reform when forming your answer.