Chapter Ten Crimes Against Persons: Criminal Sexual Conduct, Bodily Injury, and Personal Restraint

Chapter Ten Learning Objectives Understand that crimes against persons boil down to four types: taking a life; unwanted sexual invasions, bodily injury; and personal restraint. Understand that voluntary and knowing consensual behavior between two adults is legal, healthy and desired. Understand that the vast majority of rape victims are raped by men they know.

Chapter Ten Learning Objectives Understand that during the 1970s and 1980s sexual assault reform changed the fact of criminal sexual assault law. Understand that force beyond that required to complete sexual penetration or contact is not always required to satisfy the force requirement in rape. Understand that rape is a general intent crime. Understand that statutory rape is a strict liability crime in most states.

Chapter Ten Learning Objectives Understand that assault and battery are two separate crimes. Understand that domestic violence since the early 1970s has been transformed from a private concern to a criminal justice problem. Understand that stalking, although an ancient practice, is a new crime. Understand that kidnapping and false imprisonment violate the right of locomotion.

Sex Offenses Originally, criminal law recognized only Common law rape Intentional, forced, nonconsensual, heterosexual vaginal penetration (by a non-spouse) Common law sodomy Anal intercourse between two males Modern opinions relax definitions of rape Sexual assault or criminal sexual conduct statutes of the 1970s and 1980s have expanded the definitions.

Rape Vast majority of rapes are committed by acquaintances Aggravated rape Rape by strangers or men with weapons who physically injure victims Unarmed acquaintance rape Nonconsensual sex between dates, lovers, neighbors, co-workers, employers

Criminal Justice Response to Rape Good at dealing with aggravated rape Not so good at dealing with acquaintance rape Victims less likely to report Police less likely to believe Prosecutors less likely to charge Jurors less likely to convict Unarmed acquaintance rapists are likely to escape punishment if victims don’t follow middle-class morality rules Many rapes are committed by men against men

History of Rape Law Common Law rape Carnal knowledge of a woman forcibly against her will Sexual intercourse by force or a threat of severe bodily harm (actus reus) Intentional vaginal intercourse (mens rea) Intercourse between man and woman not his wife (attendant circumstance) Intercourse without woman’s consent (attendant circumstance)

History of Rape Law (continued) Rape was a capital offense Rape victims were allowed to testify against rapist Rape victims credibility was determined by Chastity Prompt reporting Other witness corroboration

Criminal Sexual Conduct Statutes Transformation 1970s and 1980s Abolished the corroboration rule Enacted rape shield statutes Relaxed prompt reporting rule Most states abolished the marital rape exception Shift of emphasis from nonconsent of victim to unwanted advances of perpetrator

Model Penal Code Eliminated consent as an element in rape Recognized difficulty in drawing the line between forcible rape and reluctant submission

Sexual Assault Statutes Arose in 1970s and 1980s One comprehensive statute Expanded definition of rape to include all sexual penetrations Created less serious crime of sexual contact Sex offenses made gender-neutral

Sexual Assault Statutes Seriousness of offense graded by criteria Penetrations more serious than contacts Forcible penetrations and contacts are more serious than simple nonconsensual penetrations and contacts Physical injury to victim aggravates the offense Rapes involving more than one rapist, “gang rapes” are more serious than one single rapist

Elements of Modern Rape law Actus reus – sexual penetration by force or threat of force Mens rea- intentional sexual penetration Circumstance –non consent of the victim

Rape Actus Reus Force and Resistance rule No rape if victims consented Historically in practice victims had to prove they hadn’t consented Resistance showed nonconsent Reynolds v. State (1889) Proof of nonconsent is peculiar to rape Default position is consent

Rape Actus Reus (continued) Amount of resistance required has changed over time Utmost resistance standard 1850’s through the 1950’s (resist with all the power they had) Brown v. State (1906)… Casico v. State (1947) resist to utmost with most vehement exercise of every physical means…. Reasonable resistance rule 1950’s forward - look at the totality of the circumstances Jones v. State (1984) Many new statutes have dropped the resistance requirement entirely. But resistance may be needed to show force in acquaintance rapes. Jones v. State (1992)

Force Requirement Extrinsic Force approach: Intrinsic Force approach Requires some act of force in addition to the muscular movements needed to accomplish penetration Example: Commonwealth v. Berkowitz (1994) Intrinsic Force approach Requires only the amount of physical effort necessary to accomplish penetration Example: State in the interest of M.T. S. (1992)

Summary of case holdings Berkowitz demonstrates the extrinsic force approach: “Where there is a lack of consent, but no showing of either physical force, a threat of physical force, or psychological coercion, the “forcible compulsion” requirement . . . is not met.” “The degree of physical force, threat of force, or psychological coercion . . . Must be sufficient to prevent resistance by a person of reasonable resolution, but the “peculiar situation” of the victim and other subjective factors should be considered by the court in determining resistance, assent, consent.”

Summary of case holdings MTS highlights the intrinsic force approach: “We conclude. . . That any act of sexual penetration engaged by the defendant without the affirmative and freely given permission of the victim to the specific act of penetration constitutes the offense of sexual assault” The element of physical force was met simply by an act of nonconsensual penetration involving no more force than necessary to accomplish the result

Threat of Force Actual use of force isn’t required to satisfy the force requirement, the threat of force is enough Prosecution must show 2 types of fear: Subjective fear (victim honestly feared imminent and serious bodily harm) Objective fear (fear was reasonable under the circumstances) Factors may include Ages, Sizes, Mental Condition, Setting, Position of Authority or Control Social science research on harm to resisting victim – “may threaten victims’ lives”

Exceptions to the force and resistance rule Victim Incapacitated – Intoxication, Mental deficiency or Insanity Age – Children Under the Legal Age of Consent Deception can substitute for force

Exceptions to the force and resistance rule Deception can substitute for force Fraud in fact = tricking victim into believing that the act she consented to was not sexual intercourse Example: Moran v. People (1872) Fraud in the inducement (does not substitute for force) = getting victims consent to sexual intercourse by fraudulent means (there was consent, so no rape) Example: Boro v. Superior Court (1985) – “Dr. Feelgood”

Rape Mens Rea Rape is General Intent Crime Defendants have the criminal intent when they intend to have intercourse Mens rea concerning the attendant circumstances may vary by statute

Mens Rea re: Attendant circumstance of nonconsent Continuum of mens rea Some states adopt strict liability. As long as offender intended to have intercourse, if the victim did not consent it is rape (regardless of whether offender reasonably thought he/she consented or not). Example: Commonwealth v. Fischer (1998) Some states have adopted a negligence standard. If the offender had a reasonable and bona fide belief that the victim consented, there is no rape. (If the defendant was not aware but should have been, then he/she is said to be negligent as to the attendant circumstance, and it will be rape) Example: People v. Mayberry (1975) Some states have adopted a reckless standard. The defendant has to be aware that there is a risk that the victim hasn’t consented to sexual intercourse and nevertheless disregard that risk for the offense to be rape Example: Regina v. Morgan (1975) Critics argue that, due to the severe penalties, the standard should be knowing. (Defendants must know that the victim did not consent)

Statutory Rape Having sex with minors Age of victim substitutes for force requirement Nonconsent is not an element Consent is not a defense because minors cannot are not legally incompetent to consent Strict Liability Crime in most states; however, some states allow for reasonable mistake of age

Grades of Rape Most statutes distinguish between aggravated rape (1st Degree) and simple rape (2nd Degree) Aggravated rape involves additional circumstance Serious bodily injury to victim Stranger commits rape Rape occurs in connection with other crime Rapist is armed Rapist has accomplices Victim is minor and rapist is several years older

Bodily Injury Crimes Battery Unwanted and unjustified offensive touching Requires contact with victim’s body Actus reus: unlawful touching (without consent) Mens rea: levels of mens rea from Model Penal Code Some injury required: Minor injury = misdemeanor Serious injury = felonies

Bodily Injury Crimes Assault Attempted battery assault Specific intent to commit a battery plus taking substantial steps toward completion, but no completion Incomplete physical injury, victim awareness is irrelevant Threatened battery assault Aka intentional scaring or menacing Specific intent to frighten victims, and some act giving fright Words alone are generally insufficient, but with gestures its enough Awareness of victim is generally essential Conditional threats are generally insufficient

Assault Historically, assaults were all misdemeanors Modern statutes, assaults graded and include some felonious assaults

Domestic Violence Crimes Domestic violence may be represented in many crimes Some states have specific domestic violence crimes which parallel assault and battery charges Current and former family members, household members, co-parents Punishments for domestic violence assault and battery tend to be enhanced from normal assault and battery

Hamilton v. Cameron (1997) Summary of case holding Because victim recanted her statement and testified that she was not threatened and did not believe she was in imminent harm, the court found there was insufficient evidence to prove state of mind of victim and other essential elements of the crime. There was no other evidence from which this could be inferred.

Stalking Intentionally scaring another person by following, tormenting, or harassing him or her Fill in gaps in law by criminalizing conduct which falls short of assault and battery All states have enacted some sort of stalking law (since early 1990s) Statutes vary greatly

Stalking (continued) Stalking Actus Reus: Stalking Mens Rea Variety of actions, generally involving maintaining physical proximity or visual proximity Some states require threats All states require conduct be repeated Some states provide list of very specific acts. Stalking Mens Rea Result crime, Offender must have specific intent to commit the actus reus Offender must also have mental attitude causing bad result but statutes vary as to which mental attitude is needed. Subjective fault (half states)—offender himself knew behavior would cause result Objective fault (1/3 states)—reasonable person would know behavior would cause bad result.

Stalking (continued) Bad result = fear Four Approaches Among the States: Subjective fear + objective fear Victim is afraid and its reasonable for victim to be afraid Subjective fear only test Only need to show victim was actually afraid Objective fear only Reasonable person would be afraid Intent to instill fear Actors intent to instill fear, whether or not victim or other was or would have been afraid

Cyberstalking Using internet, e-mail, other electronic communications devices to stalk another person through threatening behavior. Example: State v. Hoying (2005)

State v. Hoying (2005) Summary of case holding Court held that a reasonable jury could have inferred from the content of the e-mails that Hoying knew victim would consider the messages to be a threat to her physical safety or to that of her father A reasonable jury could find that the messages would cause mental distress Record supports maximum sentence due to defendant’s great likelihood of recidivism

Kidnapping Common law crime – Originally involved taking king’s relatives (to another country) for ransom 6 elements existed under the Common Law: Seizing Carrying away (asportation of) or Confining By force, threat of force, fraud or deception Another person With intent to deprive the other person of his liberty

Kidnapping (continued) Modern crime Famous Cases State v. Hauptmann (1935) - Charles Lindbergh’s son Symbionese Liberation Army - Patty Hearst (1974) Actus Reus: seizing and carrying away Distance has become a non-issue Quality and character of the carrying away not the actual distance Examples: People v. Chessman (1951) People v. Allen (1997)

People v. Allen (1997) Summary of case holding Court concluded that while absolute footage the distance moved may have been short, the character of moving the victim was of a nature sufficient to justify jury’s finding of substantially. Movement was made to prevent victim from keeping her car, protecting her child, moving from relative safety across an active thoroughfare...greater risk of injury.

Kidnapping (continued) Kidnapping Mens Rea Specific intent to confine, restrain or hold victims in secret. Intent to isolate the victim from the prospect of release or intervention Grading Seriousness of Kidnapping Simple Aggravating Circumstances: Most common aggravating factors are for purpose(s) of: sexual invasions, hostage taking, ransom, robbing, murdering, blackmailing, terrorizing victim, achieving political claims

False Imprisonment Lesser form of personal restraint than kidnapping Deprive a person of personal liberty No asportation requirement Deprivation of liberty is brief Compelling a person to remain where he does not wish to remain

False Imprisonment (continued) Actus reus forcible detention—even if brief Under the Model Penal Code, Restraint must interfere substantially with the victim’s liberty, but in most states, any interference is enough Physical force or threatened force accomplishes the detention Mens Rea: specific intent to confine and restrain another without his or her consent