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

2. 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.

3. 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.

4. 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.

5. 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.

6. 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

7. 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

8. 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)

9. 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

10. 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

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

12. 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

13. 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

14. 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

15. 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

16. 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)

17. 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)

18. 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.”

19. 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

20. 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”

21. 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

22. 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”

23. 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

24. 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)

25. 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

26. 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

27. 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

28. 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

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

30. 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

31. 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.

32. 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

33. 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.

34. 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

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

36. State v. Hoying (2005) Summary of case holding
Court held that a reasonable jury could have inferred from the content of the s 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

37. 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

38. 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)

39. 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.

40. 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

41. 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

42. 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