Brown v. State

127 Wis. 193, 106 N.W. 536 (1906)



To prove rape, not only must there be entire absence of mental consent or assent, but there must be the most vehement exercise of every physical means or faculty within the woman's power to resist the penetration of her person, and this must be shown to persist until the offense is consummated. 


Defendant and the prosecutrix had known each other all their lives and had previously had direct personal contact in games involving "kissing forfeits." Defendant claimed the sex was consensual. Reversing the conviction and sentence, the court held that without corroboration, such as signs and marks of the struggle upon the clothing and persons of the participants and the victim's complaint at the earliest opportunity, the prosecutrix's testimony was not clear and convincing enough to support a guilty verdict. The court found that an officer's warning to the jurors that they would be locked in if they did not reach a verdict soon was threatening and coercive, given the jurors' belief that they would be required to stay in the smoke-filled room where they had been deliberating, and that jurors' affidavits were admissible to prove the physical conditions and the officer's statement.


Can a rape defendant be held criminally liable for rape where the record showed some resistance from his victim and they had some prior physical history?




Turning to the testimony of prosecutrix, we find it limited to the general statement, often repeated, that she tried as hard as she could to get away. Except for one demand, when first seized, to "let me go," and inarticulate screams, she mentions no verbal protests. While we would reasonably recognize the limitations resting on many people in attempting expression and description, we cannot conceive it possible that one whose mind and exertions had, during an encounter of this sort, been set on resistance, could or would in narrative mention nothing but escape or withdrawal. A woman's means of protection are not limited to that, but she is equipped to interpose most effective obstacles by means of hands and limbs and pelvic muscles. Indeed, medical writers insist that these obstacles are practically insuperable in absence of more than the usual relative disproportion of age and strength between man and woman, though no such impossibility is recognized as a rule of law.

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