§33.04 RAPE: ACTUS REUS
| Jurisdiction | United States |
§33.04. Rape: Actus Reus
[A] In General
Generally speaking, sexual intercourse by a male, with a female not his wife, constitutes rape if it is committed: (1) forcibly; (2) by means of certain forms of deception; (3) while the female is asleep or unconscious; or (4) upon a female incompetent to give consent (e.g., she is drugged, mentally disabled, or too young).
As previously noted,54 rape law is undergoing dramatic change. To summarize the law is to shoot at a moving target or, perhaps, at 50 state moving targets. It is useful, therefore, to distinguish between what might be characterized as traditional rape law— common law rape and statutes largely based on such principles — and the more expansive definitions of rape developing in more and more jurisdictions.
[B] Forcible Rape
[1] Traditional Law
[a] Overview
The traditional rule is that a successful prosecution for forcible rape requires proof that the female did not consent to the intercourse and that the sexual intercourse was secured by "force" (as explained below). That is, where there is lack of consent, but no showing of force, a forcible rape conviction is inappropriate.55
In view of the obvious importance of "force" in forcible rape prosecutions, it is perhaps odd that courts "have often struggled to distinguish what kind of conduct satisfies the [force] element[.]"56As explained more fully below, the traditional position apparently is that nonconsensual intercourse is "forcible" only if the male uses or threatens to use force likely to cause serious bodily harm to the female (or, possibly, to a third per-son57), or if the male uses force to overcome the female's physical resistance to his actions.
Based on traditional principles, intercourse secured by a non-physical threat does not ordinarily constitute forcible rape. Thus, under traditional law, it is not "forcible rape" for an adult guardian to threaten to recommit a 14-year-old girl to a juvenile detention facility if she does not submit to his advances,58 or for a high school principal to threaten not to allow a senior to graduate unless she has sex with him.59 And use or threats of very mild force (in the absence of resistance) fall outside the traditional definition of "forcible rape" and, thus, what today would be characterized as "acquaintance rape" or "date rape" fall outside the scope of the offense in its traditional form.
[b] Lack of Consent: Issues to Consider
Typically, the elements of "nonconsent" and "force" will merge in a forcible rape prosecution. The male's use (or threatened use) of grave force proves both elements.60 Nonetheless, the two concepts are distinct. A female may not want sexual intercourse—it is nonconsensual, in some sense—but she may passively acquiesce to an act of penetration performed without undue force. If so, this does not constitute common law forcible rape.
"Consent" (or, if you will, "nonconsent") is a concept of considerable complexity and, today, great controversy.61 "Consent" may be understood as an attitudinal, or internal (subjective), state of mind. For example, a female may, in her mind, want intercourse (thus, intercourse was "consensual" in this sense) or not want it ("nonconsensual"), but fail to manifest her wishes outwardly.
Alternatively, "consent" may be understood as an expressive, or external, concept. That is, "consent" exists if permission to have intercourse is given verbally or by some other external act by the party (a literal or figurative "yes"); under this view, "nonconsent" exists when permission is actively refused (a "no" or physical resistance). Until recently, courts and legislatures rarely clarified which version of "consent"/"nonconsent" applied.62 And, even if "consent" is regarded as an expressive concept, there remains the issue of how the law should deal with silence. Should the legal onus be placed on the person who seeks intercourse to obtain affirmative permission (silence = nonconsent), or should the law put the burden on the other party to deny permission by words or actions (silence = consent)?
Other "consent" issues may be noted here. First, the attitudinal (subjective) version of "consent" necessarily can result in miscalculation by the other party: The male may honestly believe the female wants intercourse when she does not, thereby raising mens rea issues.63 The expressive form of consent is less ambiguous, but even here issues remain: the questions of whether "no" always means "no"64 and, if it does, how long the "no" applies. What if F says "no" to M's overtures for intercourse in the early evening. Then M and F have a romantic dinner together. Does the "no" remain active? What about the next day? Does the "no" remain indefinitely until a "yes" is given, or do the parties start fresh, in neutral position, at some point?
It should also be kept in mind that "yes" may not always mean "yes" because consent, to be legally valid, must be voluntary; even if consent is granted, permission must be given freely. Unfortunately, the concept of voluntariness, or its antithesis of duress,65 is largely a normative concept. In some sense, all choices people make in life are "voluntary" (the woman who agrees to intercourse rather than be severely injured or killed has, in one sense, rationally "chosen" intercourse), and likewise are "involuntary" (even in a loving relationship, the woman may feel psychological pressure from the circumstances to have intercourse), so the line between consensual and nonconsensual intercourse at the outer edges can be little more than a normative line drawn to distinguish between pressures a person should, and should not, be expected to resist.
Third, even if voluntary consent is granted, it might be withdrawn. If the female withdraws consent before intercourse occurs — mens rea issues aside—the male is guilty of rape if he proceeds forcibly to have sexual intercourse. But what if the female withdraws consent after penetration but while sexual intercourse is still underway?66 Although the law used to be otherwise and even today is not undivided, the majority rule today seems to be that M's continuation of intercourse after F's post-penetration withdrawal of consent constitutes rape (assuming the other elements are proven) .67
[c] Force and Resistance
Traditionally, courts rarely needed to define the term "force" in rape prosecutions. If the perpetrator used or threatened to use extreme force — force likely to cause serious injury or death—the element of "force" (or "constructive force" in the case of a threat) was (and is) uncontroversially satisfied. The victim did not need to resist her aggressor.
However, if a male exerted only moderate force, the traditional rule was that a rape conviction would not stand unless it was proven at trial that the female resisted the male's unwanted overtures "and her resistance was overcome by force or . . . she was prevented from resisting by threats to her safety."68 Thus, even if a sexual encounter did not begin forcibly, or began with only moderate use of force, the traditional resistance requirement imposed on the female the obligation to physically respond in a manner that externally demonstrated her lack of consent and caused the perpetrator, if he intended to persist, to use violence (or its threat) in order to overcome her will. It was the latter act by the perpetrator that satisfied the force element, if not already proven.69
The resistance requirement has been expressed in different ways. In the distant past, courts sometimes required the victim to resist "to the utmost." In its most extreme version, courts would state that the female must "follow the natural instinct of every proud female"70 to resist the sexual attacker "until exhausted or overpowered,"71 or to resist "the attack in every way possible and continue[] such resistance until she [is] overcome by force, [is] insensible through fright, or cease[s] resistance from exhaustion, fear of death or great bodily harm."72 As discussed later in this chapter section, however, the resistance rule has been sharply criticized and does not hold sway to the extent that it once did.
[d] Threat of Force Versus Fear of Force
Forcible rape prosecutions may be based on a threat of serious force rather than its actual infliction. The threat may be manifested verbally ("do as I say, or I will kill you") or nonverbally (e.g., waving a knife at the victim),73 or may reasonably be implied from the circumstances.74
In order for a forcible rape charge to be upheld on the basis of "threat of force," it is not ordinarily enough for the prosecution to show, simply, that the female feared serious bodily injury. Fear is a subjective emotion—a feeling in the mind of the victim—whereas a threat is an objective act emanating from another person. In general, both components— the female's subjective apprehension of serious harm, and some conduct by the male that places her in reasonable apprehension for her safety—are required.75 Thus, no forcible rape occurs if a female accedes to intercourse with a male simply "because he is bigger than she is and she is afraid of him."76 Some courts go further, however, and provide that a forcible rape prosecution is appropriate, even if the female's fears are unreasonable, if the male "knowingly takes advantage of that fear in order to accomplish sexual intercourse."77
[e] Cases Applying the Traditional Doctrine
The strictness of the traditional definition of forcible rape is evident by considering three cases.
State v. Alston78 provides a classic example of pre-reform rape law: M and F had participated in an abusive relationship, in which F sometimes had sexual relations with M "just to accommodate" his violent demands. On those occasions, F "would stand still and remain entirely passive while [ M] undressed her and had intercourse with her."
At the time of the incident, F was living with her mother because she wanted out of the relationship. M telephoned her and demanded that F ...
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