Chapter 3 Criminal Sexual Conduct

• Library: SC Crimes: Elements and Defenses (SCBar) (2021 Ed.)

Chapter 3 Criminal Sexual Conduct

A. Introduction

In 1977, the Criminal Sexual Conduct Statute, S.C. Code Ann. § 16-3-651.9, became law and the earlier statutes prohibiting rape and carnal knowledge of a woman child (statutory rape) and their punishments were repealed. See State v. Stewart, 320 S.E.2d 447, 450-51 (S.C. 1984).

The South Carolina Supreme Court found that the legislature intended the terms "rape" and "criminal sexual conduct" to be the same; likewise, the terms "assault with intent to ravish" and "assault with intent to commit criminal sexual conduct" were also interchangeable. Id.

Because the Criminal Sexual Conduct Statute only repealed the rape and statutory rape statutes, it is presumed that the common law crimes of rape, carnal knowledge of a woman child, and assault with intent to ravish are still in effect. See McAninch, Fairey, and Coggiola, THE CRIMINAL LAW OF SOUTH CAROLINA, 267 (6^th ed. 2013) (hereafter, McAninch, Fairey, and Coggiola (2013)).

B. Common Law Rape

1. Definition and Elements

"Ravish or rape, the words being synonymous, is defined as the carnal knowledge of a woman by force and against her consent." State v. Tuckness, 185 S.E.2d 607, 608 (S.C. 1971) (citation omitted).

At common law, the offense of rape could only be committed by a male against a female. See McAninch, Fairey, and Coggiola, 268 (2013). The elements of common law rape include: carnal knowledge of a female, use of force by the male, an intent to have intercourse, and a lack of consent by the victim. Id.

a. Carnal knowledge

The element of "carnal knowledge" requires penetration. While there "must be some degree of penetration of the female genital organ by the male genital organ, even a slight penetration is sufficient." State v. Tuckness, 185 S.E.2d at 608. The State does not have to prove emission. Id.

b. Use of force by the male

Use of force by the male "may be actual or constructive, and the degree of force and of resistance required to characterize the act as rape must, of necessity, vary with the circumstances of the particular case." State v. Whitener, 89 S.E.2d 701, 716 (S.C. 1955). Thus, for example, "sexual intercourse with a woman who is unconscious or insane is rape, and neither force nor resistance is necessary to constitute the offense." Id. The age of the victim is also a factor, for example, if the victim is under fourteen years of age, force is not required; under the South Carolina Constitution, an unmarried child under fourteen cannot consent to sexual intercourse. See Toomer v. State, 529 S.E.2d 719, 720-21 (S.C. 2000). If the sexual act occurs through fraud or deception, the common law does not require force for there to be rape. See McAninch, Fairey, and Coggiola, 270 (2013).

c. Intent to have intercourse

The State must establish that the defendant had the intent to have intercourse with the victim. The question of intent is one for the jury to decide based upon all the circumstances of a particular case. State v. Tuckness, 185 S.E.2d at 608.

d. Lack of consent

The State must establish the lack of consent on the part of the victim; it is not an affirmative defense to be established by the defendant. See State v. Whitener, 89 S.E.2d at 716. In the event of statutory rape, it is not necessary for the State to prove force or lack of consent. Toomer v. State, 529 S.E.2d at 720-21.

C. Common Law Assault with Intent to Ravish

1. Definition and Elements

"Assault with intent to ravish" requires an assault by a male on a female with the intent to commit rape. See State v. McClinton, 217 S.E.2d 584, 585 (S.C. 1975). Assault with an intent to commit some lesser battery is not sufficient. State v. Tuckness, 185 S.E.2d at 608.

a. Assault

As with simple assault, assault with intent to ravish requires some overt act constituting an assault although an actual touching of the victim is not required. See McAninch, Fairey, and Coggiola, 271 (2013).

b. Assailant had intent to commit rape

The accused must intend to have sexual intercourse with a female by force and against her will. See State v. Whitener, 89 S.E.2d at 716. Intent...