1. Sex Offenses, Batteries and Personal Restraint
More crimes against people

2. 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

3. 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”

4. 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

5. 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

6. 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

7. 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

8. 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

9. 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

10. 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

11. 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?”

12. 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

13. 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

14. 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?

15. 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

16. 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

17. 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.

18. 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

19. 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.

20. 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.

21. 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.

22. 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