Criminal Law Capsule Summary

§ 25.01 General Principles

[A] Common law – Generally speaking, sexual intercourse by a male with a female not his wife, constitutes rape if it is committed:

	1.)	forcibly
	2.)	by means of deception;
	3.)	while the female is asleep or unconscious; or
	4.)	under circumstances in which the female is not competent to give consent (e.g., she is drugged, mentally disabled, or underage).

Rape is a general-intent offense. As such, a defendant is guilty of rape if he possessed a morally blameworthy state of mind regarding the female’s lack of consent.

[B] Traditional Statutory Law – Traditional rape statutes define the offense as sexual intercourse achieved "forcibly," "against the will" of the female, or "without her consent." Like the common law, such statutes are gender-specific, i.e., only males are legally capable of perpetrating the offense, and only females can legally be victims of the crime.

[C] Modern Statutory Law – Many states now extend the law to specified forms of non-forcible, but nonconsensual, sexual intercourse, e.g., sexual intercourse by a male with an unconscious or drugged female. Increasingly, rape is now defined in gender-neutral terms regarding both the perpetrator and the victim. In the most reformed statutes, the offense has been broadened to include all forms of sexual penetration; the name of the crime has been changed (e.g., "criminal sexual conduct" or "sexual assault") and the offense is divided into degrees.

[D] Model Penal Code – A male is guilty of rape if, acting purposely, knowingly, or recklessly regarding each of the material elements of the offense, he has sexual intercourse with a female under any of the following circumstances:

	1.)	the female is *less than 10 years of age*;
	2.)	the female is *unconscious*;
	3.)	he compels the female to submit by *force or by threatening* her or another person with *imminent death, grievous bodily harm, extreme pain or kidnapping;* or
	4.)	he *administers or employs drugs or intoxicants* in a manner that substantially impairs the female’s ability to appraise or control her conduct. [MPC § 213.1(1)]

§ 25.02 "Forcible"

The traditional common law rule requires proof that both the female did not consent to the intercourse and that the sexual act was "by force" or "against her will" ("resistance" requirement). Generally speaking, nonconsensual intercourse is "forcible" if the male uses or threatens to use force likely to cause serious bodily harm to the female or, possibly, a third person. Intercourse secured by a non-physical threat does not constitute forcible rape at common law.

A minority of jurisdictions by statute or common law interpretation have abolished the resistance requirement. Where state have retained the resistance requirement, the trend is to reduce the significance of the rule by lowering the barrier, typically requiring only that the alleged victim asserted a degree of resistance that was reasonable under the circumstances or that was sufficient to indicate that the sexual intercourse was without consent.

An extreme minority approach, applied at least in New Jersey, is that a male can be convicted for forcible rape based solely on the lack of permission for the sexual intercourse. [State in the Interest of M.T.S., 609 A.2d 1266 (1992)]

The Model Penal Code defines rape solely in terms of the male’s acts of aggression and does not require proof of resistance by the victim.

§ 25.03 Marital Immunity Rule

At common law, a husband could not be guilty of raping his wife. The majority of states retain a partial exemption under which immunity does not apply if the parties are legally separated or are living apart at the time of the rape.

A minority of states maintain a total exemption for marital rape, while at least twelve states have abolished the rule.

The Model Penal Code recognizes a partial marital exemption that bars a rape prosecution against a spouse or persons "living as man and wife," although they are not formally married. More stringent than the majority exemption, the only exception to the marital immunity rule is for spouses living apart under a formal decree of separation. [MPC § 213.6(2)]

§ 25.04 Evidentiary Issues at Rape Trials

[A] Corroboration Rule – At common law, the testimony of the alleged rape victim did not need to be corroborated in order to convict for rape. However, a minority of states, by statute or case law, have instituted a corroboration requirement.

The Model Penal Code imposes a corroboration requirement. [MPC § 213.6(5)]

[B] Rape-Shield Statutes – If the defendant contends that the female consented to sexual intercourse with him on the occasion of the alleged rape, evidence of prior consensual sexual acts between the accused and the victim is admissible. However, today, most states bar evidence of the alleged victim’s prior consensual sexual activity with persons other than the accused and her reputation for lack of chastity under the so-called "rape-shield" laws.

The Model Penal Code is silent regarding the admissibility of evidence of the alleged victim’s sexual history or reputation for chastity.

[C] Rape Trauma Syndrome – Rape Trauma Syndrome (RTS) is a set of acute and long-term symptoms resulting from a rape or attempted rape. In the acute phase, a rape victim is as apt to appear calm and subdued immediately after an attack as she is to manifest fear, anger, or anxiety. Many woman in the acute phase also experience physical symptoms, such as tension headaches, fatigue, and disturbed sleep patterns. In the long-term phase, many rape victims develop phobias related to the circumstances of the rape.

There is a split of authority regarding the scientific reliability and, therefore, admissibility of RTS evidence. Jurisdictions that permit RTS expert testimony often admit it only for limited purposes, e.g., to explain the fact that the alleged victim appeared calm immediately after the rape if such conduct would likely be viewed by jurors as inconsistent with a claim of rape. Generally, however, RTS may not be introduced as proof of the commission of the rape itself.

The Model Penal Code is silent regarding the admissibility of evidence of RTS.

§ 25.05 Other Sex Crimes

[A] Statutory Rape – Today, "statutory rape" remains an offense in most states. Many states apply a two-level approach to this offense: sexual intercourse with a very young girl (e.g., twelve years of age or younger) remains punishable at the level of forcible rape; intercourse with an older girl (especially if the male is older than the female by a specified number of years) is a felony of a lesser degree.

The Model Penal Code does not recognize any strict liability crimes, and thus does not recognize statutory rape, although it does punish sexual intercourse by a man with a female less than 10 years of age if he knew or should have known the female’s age.

[B] Gross Sexual Imposition – Unlike the common law, the Model Penal Code does not provide for rape on the basis of fraud. However, such conduct does constitute the offense of gross sexual imposition. Subject to the marital immunity exemption, a male is guilty of gross sexual imposition if he has sexual intercourse with a female in any one of three circumstances:

	1.)	the female submits as the result of a *"threat that would prevent resistance by a woman of ordinary resolution,"* e.g., if the woman is threatened by a supervisor with loss of employment. [MPC § 213.1(2)(a)]
	2.)	a male has sexual relations with a female with knowledge that, as the result of mental illness or defect, she is *unable to appraise the nature of his conduct.* [MPC § 213.1(2)(b)]
	3.)	a male knows that the *female is unaware* that a sexual act is being committed upon her or that she submits because she *mistakenly believes that he is her husband.* [MPC § 213.1(2)(c)]