Criminal Law SSG // Week – Wednesday, September 30

Questions from last week?

Remind them that if they would like me to look over their essays from last week to email them to me.
1L Mock Trial Clinics starting Oct. 7th at 5:30 pm – a week from today!!
Deadline to vote for the upcoming election in Missouri is also October 7 th!! In Kansas it’s October 13th

Rape
MPC – Don’t need to know for exam I don’t think.

General Definition – Common Law (Forcible penetration against the victim’s will)
 Elements:
o Carnal knowledge of a woman
o Force (need proof)
 Using enough force to overcome the victim’s resistance; OR
 Using or threatening serious bodily injury or death
o Without consent (need proof)
 Only men could be perpetrators, only women could be victims
 Marital exception – a husband could not be charged with raping his wife

General Definition – Rape/sexual assault in about ½ the states

 Elements
o Some form of sexual contact (penetration for rape)
o Force (actual or constructive)
 States vary in their interpretation of “force”
 Some degree of additional force + penetration
 No additional force needed
 Other forms of compulsion may constitute adequate force
 No force requirement – “no means no” (was the sex consensual?)
 To see if there was force, courts often look to see if there was resistance
o Lack of consent
 Most states allow the defendant to make a mistake argument if the mistake was
reasonable.
 Marital exception abolished or limited in most states

Two Categories of Rape

 Forcible Rape
o Prove the elements above. Mens rea required.
 Statutory Rape
o Strict Liability; Consent is irrelevant because the victim is underage or incompetent.
o Garnett v. State – Guilty of 2nd degree rape if victim is under 14 years of age and the
actor is at least four years older than the victim (mental handicap is not excuse here)

Deception
 Fraud in the factum
o Misrepresentation for a fact that goes to the very nature of the fact.
o A doctor telling his patients to lean over, and he penetrated them without their consent.
 Fraud in the inducement
 Criminal Law SSG // Week – Wednesday, September 30

o Achieved when the fraud relates not to the fact itself but to the manner in which the
fraud is achieved. A person’s words of seduction, misinterpreted as threats by another,
cannot support a criminal charge of rape.
o Woman has sex with doctor because she thinks it will cure her of a disease.

Unconscious or impaired victims Acquaintance Rape (victim typically conscious)

(Commonwealth v. Urban)
Consent
 If someone is unconscious, they are
unable to give consent
How to prove one is unable to give consent
 Any finding of incapacity satisfies that
element as a matter of law
 Jury determines whether due to
intoxication a person was rendered so
insensible as to have been incapable of
validly consenting to sexual intercourse
 Person can be intoxicated without losing
the ability to give or withhold consent
Intoxication
 Question is not intoxicated, but whether that
intoxication was sufficient to make the
person wholly insensible and incapable
 Focus on if the person is “wholly
insensible . . . in a state of utter stupefaction
caused by drunkenness or drugs”
(State v. Rusk & MTS)
Proof of lack of consent
 Resisting the aggression
 Victim failed to resist because of fear of
death;
 Serious bodily injury;
 Fear so extreme as to preclude resistance
or a fear which would render her
incapable of continuing to resist;
 A fear that so empowers her that she
does not dare resist
Most jurisdictions require victim’s fear to be
 Grounded in order to avoid a showing of
actual force by the aggressor or physical
resistance on the part of the victim.
Force
 Must warrant a conclusion either that the
victim resisted, and her resistance was
overcome by force or that she was
prevented from resisting by threats to
her safety.
 Physical force in excess of that inherent
in the act of penetration is not required
for such penetration to be unlawful

Practice Questions

1. Dirk has intercourse with Velda, honestly believing that she has consented. In fact, Velda was
objecting and resisting with sufficient seriousness that a reasonable person would have
perceived that she was not consenting to the intercourse. Is Dirk guilty of rape?
a. Yes; Rape is a general intent crime. Therefore, an unreasonable mistake of cannot be
used to prove lack of intent. Mistake of fact must be reasonable.

2. Dance and Vance are at a party. Both have consumed great amounts of liquor. Vance passes out
and Dance engages in the act of intercourse with her while she is unconscious. Is Dance guilty of
rape?
a. YES, if the victim is unable to give consent, intercourse with her is rape.
 Criminal Law SSG // Week – Wednesday, September 30

3. Diego tells Vanna that unless she submits to intercourse with him, he will report her to the
police as a prostitute. Vanna submits. Is Diego guilty of rape?
a. NO, Consent obtained by use of threats is vitiated only where the threats are out of
bodily harm. (think inducement v. factum)

4. Dunbar tells Veronica that if she will engage in intercourse with him, he will pay her $150. He
does not intend to pay her, and after the act is complete, he refuses to pay her. Is Dunbar guilty
of rape?
a. NO, this is not one of the types of fraud that will invalidate consent

5. Deitrich and Val have been living together for two years but Val refuses to have intercourse with
him until they are married. Deitrich arranges a sham marriage and convinces Val that they are
married. Val then consents to intercourse. Is Deitrich guilty of rape?
a. SPLIT AUTHORITY, courts disagree as to whether fraud concerning the existence of a
marital relationship invalidates consent.

6. Deft is prosecuted for raping Vicky. Deft testifies that Vicky consented to intercourse. Vicky
testifies that she did not consent but rather physically resisted as much as she could. Deft asks
that the jury be instructed that he should be acquitted if the jury determines that he reasonably
believed Vicky consented, whether or not she actually did. Does this prosecution have a viable
argument that this instruction should not be given?
a. YES, some courts hold that such an intrusion is appropriate only if there is some
evidence of equivocal conduct on the victim’s part that might have supported a belief by
the defendant that the victim consented.