Sex Offenses, Batteries and Personal Restraint More crimes against people

Common Law – Sex Offenses It used to be quite simple Only Rape and Sodomy (anal sex between males) existed Rape was absent from 10 Commandments Crime against father (if victim was unmarried) or husband if she was

Rape under Common Law Limited to intentional, forced, nonconsensual, heterosexual vaginal penetration Men couldn’t rape their wives Blackstone immortalized as “ carnal knowledge of a woman forcibly and against her will”

Common Law elements Actus reus – intercourse, by force, or threat of severe injury Mens rea – intent to force vaginal intercourse Attendant circumstances: 1) intercourse with woman, not his wife 2) no consent All must be proved beyond a reasonable doubt

Deep ambivalence Commentators deplored the “heinousness” of the act But, at the same time, set up significant obstacles for effective prosecution First of all, conviction often relied upon victim’s testimony, and consequentially, her credibility

What does credible mean? To support a conviction through testimony, the victim must be: 1) chaste 2) a prompt complainer 3) corroborated by other witnesses Tough on many occasions, if not impossible, to satisfy

Other factors Assumed that rape was committed by strangers, suddenly springing from the dark Today there are big distinctions, regarding punishment, with respect to assaults involving penetration and those which just involve unwanted sexual contact

Sex Offenses today Expansion – more behaviors (simple touching) Refinement – distinctions drawn between differing types of offenses: 1) aggravated rape – assaults of marked violence 2) unarmed acquaintance rape – assaults committed by people outside the traditional profile Often involve young men

Big problems with Acquaintance Rape Changes in the law have not decreased Most rapes arise from people we know Victims are less likely to report Harder to get convictions Non-legal expectations - little support if victims engage in casual sex or drink

Legal obstacles – acquaintance rape Beyond a reasonable doubt – usually turns to a question of consent, explored by words and nonverbal communication Built in problems: 1) presumption of innocence 2) often the defendant won’t testify 3) but the victim will and thus submit to cross examination and imperfect memory

Modern statutes Arose through a nation-wide effort to shift the focus away from the victim’s conduct: “How was she dressed?” “Did she resist?” “How vigorously?” “Is she promiscuous?”

Big Changes Expand from just rape to several tiered offenses Eliminate requirement that victims must prove physical resistance – too dangerous No need for corroboration – too private Limit introduction of victim’s prior activity – rape shield laws Expand protection to wives from husbands

Assumption of the Risk Unspoken belief that certain conduct implies consent or complicity Provocative dress Drinking Being in certain places at certain times Rarely applied to other crimes

Factors in grading offenses To differentiate, statutes now look at evidence of seriousness: Was there penetration? Were weapons, threats, physical force used? Was the victim injured? Was another felony involved? Age gap?

Actus Reus today Prior insistence on resistance was unique Amazingly, the law presumes consent For 150 years, the utmost resistance standard prevailed Look at that 16 yr old virgin in Wisconsin! Finally, things got more realistic with the reasonable resistance rule Followed virtually everywhere today

How much resistance is necessary? In most states, the letter of the law does not require resistance But in acquaintance rape cases, it still matters Force and resistance often go together Extrinsic force – some force beyond that needed for penetration is necessary Intrinsic force – only that which is needed for penetration

Is saying “no” enough? Not in Commonwealth v Berkowitz Huge controversy followed Does it just reflect centuries of male domination and female submission? No wonder women sometimes “doubt” that they have been raped, blame themselves, and don’t report assaults.

Cultural Cognition Theory Some believe that a weak “no” is a woman of loose morals attempt to look good. In fact some women are least forgiving of other women

Did the change in the law help? Not the victims. Dropping resistance and force requirements had no effect on how people viewed guilt and innocence. Even true for many of the people who were told that “no means no” was the law.

Mens rea for Rape Usually not an issue Can arise as to the victim’s consent – did the defendant make a mistake concerning consent? States vary as to whether the mistake must be reckless, or can be negligent, instead. Some apply strict liability – it just doesn’t matter.

Statutory Rape If the “victim” is beneath a certain age defenses such as consent and force don’t work. Too young to consent. The victim’s immaturity substitutes for force. But in some states, negligence, rather than strict liability is the standard – defense of reasonable mistake of age.

Criminal Contact Offenses Even without penetration, improper fondling, kissing, even touching can be crimes. In Triestman, if the conduct is unauthorized and offensive, the defendant can be found guilty