Criminal Law Outline - Rape

  1. Rape Terms and Definitions
    1. Consent
      1. Traditionally…
        1. An expressive, or external, concept…
          1. Exists when permission is given verbally or by some other external act by the party (a literal or figurative yes).
          2. Does not exist when permission is refused (a no or physical resistance).
          3. What if V is silent?
      1. Reforming towards…
        1. An attitudinal, or internal, state of mind…
          1. Actor may want intercourse (consensual).
          2. Actor may not want intercourse (nonconsensual).
          3. Subject to miscalculation by partner.
          4. What if V fails to manifest wishes objectively?
        1. Becoming the only necessary element in a rape case.
    1. Force/Resistance
      1. Traditionally…
        1. Threat of force
          1. Must threaten to use extreme force, force likely to cause serious injury or death to V or 3rd party.
            1. V's mere fear of harm alone is not sufficient.
            2. Must be coupled with some conduct by D that places V in reasonable apprehension for her safety.
          1. Ex. State v. Rusk (MD - 1979)
            1. V agreed to give D a ride home. When they got there, D took V's car keys and said he wanted to go upstairs. Put his hand gently around V's throat. V asked if he wouldn't kill her if she did what D wanted. D said yes.
            2. Held (at mid-level court) that V did not physically resist and the evidence did not support her claim that she reasonably feared that if she had resisted that D would have harmed her.
            3. Held (at upper court, progressive) that that reasonableness of V's apprehension of fear and her justification for not physically resisting was a question of fact for the jury.
          1. Ex. State v. Alston (NC - 1984)
            1. Statute: Rape required both force and non-consent.
            2. D and V were ex-lovers. D visited V at school, took her to friend's place, threatened her on the way. Once there, she said no but laid down and did not resist.
            3. Held that non-consent was established, but force was not established. Court used a narrow-time frame in order to avoid finding force. The threat was probably enough, but court held it was not directly in connection with the sex.
        1. Actual force
          1. Actual force in a rape claim is established if it is sufficient force to overcome V's physical resistance to D's actions.
          2. By implication, V must physically respond and resist.
            1. Some old statutes required that Vs must resist "until exhausted or overpowered."
          1. Ex. Commonwealth v. Berkowitz (PA - 1992)
            1. Statute: Rape is sexual contact through forcible compulsion.
            2. Acquaintance rape in dorm room. V said/moaned no during but never physically resisted.
            3. Held that there was no forcible compulsion in this case. Factors to consider in finding forcible compulsion…
              • The respective ages of the victim and accused
              • The respective mental and physical conditions
              • The atmosphere and physical setting
              • Extent to which the accused may have been in a position of authority, domination, or custodial control over the victim
              • Whether the victim was under duress
        1. Traditional rape law does not find that psychological force is sufficient force for rape.
          1. Ex. Principal of high school says that victim cannot graduate unless she has sex with him.
      1. Reforming towards…
        1. Abolishing or minimizing the force requirement.
          1. Some states are removing force as an element for rape. Instead, force by D is used as evidence showing that the V did not consent.
          2. Ex. State in the Interest of M.T.S. (NJ - 1992)
            1. Statute: "Rape is the commission of sexual penetration with another person with the use of physical force or coercion."
            2. D was staying with V and her family. D and V were fooling around when he started having sex with her. V claimed it was non-consensual.
            3. Held that physical force as used in the sexual assault statute is any act of sexual penetration engaged in by the D without the affirmative and freely-given permission of the victim to the specific act of penetration.
            4. Thus, a D commits rape under MTS if he has intercourse without securing a yes in words or actions before proceeding.
        1. Abolishing or minimizing the resistance requirement.
          1. "Earnest" resistance, resistance sufficient to "establish that an act of sexual intercourse was without consent", or "resistance that is reasonable under the circumstances. "
          2. However, even while some states do not require resistance as an element of rape, lack of resistance can be used by D as evidence of lack of knowledge of non-consent.
        1. Redefining force broadly to include minor physical acts or non-physical forms of coercion.
          1. Ex. PA defines forcible compulsion as intellectual, emotional, or psychological force.
  1. Withdrawn Consent
    1. Traditionally…
      1. If V initially consents to sex at the time of penetration but later withdraws consent, any use of force past that point is not rape.
      2. The essence of rape is the outrage a woman feels; if she has already consented and then withdraws the consent, the level of outrage she feels will be much less than the level of outrage if she had not consented at all.
    1. Reforming Towards…
      1. If the victim expresses an objection and attempts to stop the act and D forcibly continues despite the objection, there is a rape.
      2. People v. John Z. (CA - 2003)
        1. Threesome situation, one left, D then started. Tenuous initial consent. V then said that she needed to go; D continued. V said she needed to go three times, more urgently each time.
        2. Held that a withdrawal of consent effectively nullifies any earlier consent and subjects the D to forcible rape charges if he persists in what has become nonconsensual intercourse.
      1. Problems
        1. Is any force necessary after the consent is withdrawn or just the force inherent in the sex act?
        2. How soon must a D stop after consent is withdrawn before it becomes a crime?
        3. Should the penalty be the same as for rape?
  1. Mens Rea for Rape
    1. Traditionally…
      1. General-intent offense. (possession of intention that sex be nonconsensual is not required for conviction)
      2. D is not guilty of rape if he entertained a genuine and reasonable belief that V voluntarily consented to sex.
        1. Conforms with ordinary, common law mistake of fact principles for general-intent offenses.
    1. Reforming towards…
      1. D's reasonable mistake of fact regarding V's lack of consent is not an excuse.
        1. Seems to turn rape into a strict liability offense.
        2. Arguably, D is acting without culpability. Should he really be punished?
  1. Chart






sometimes “intercourse” only

Other forms of sexual contact


Physical or threatened physical;

high threshold

Less force or none at all

Lack of Consent


Inferred from force and resistance

Does more;

Sometimes, most of the work


Not an element but required evidentiary factor

Not required; evidentiary only


Male D; Female V






Rape or nothing

Rape v. Sexual Assault, Abuse,