Excerpt from Criminal Law: Cases, Controversies and Problems (West Academic Publishing 2019) by Joseph E. Kennedy (used with permission).

CHAPTER 23 RAPE ■ ■ ■

Rape law is a fascinating, important, and difficult subject, both to teach and to learn. The special challenges of rape law shape how most professors approach it, so this chapter begins with a discussion of those challenges before proceeding with an overview of the elements of rape.

A. THE CHALLENGES AND REWARDS OF RAPE LAW

Rape is not an easy topic to talk about. Statistically, it is very likely that someone in your class has been raped. It is much less likely but not inconceivable that someone in your class may have been falsely accused of rape. That obviously makes the topic a sensitive one to discuss. These same facts, however, make rape law an important and potentially rewarding topic to explore. Rape law also raises profoundly difficult issues of gender, autonomy, and the role of the criminal law in the most intimate areas of our lives. The law of rape was formed during an openly patriarchal time when woman were subjugated by law in numerous ways. At common law men were legally incapable of being guilty of the rape of their wives because the consent of the wife to intercourse with her husband was conclusively presumed as a matter of law. Since adultery and sex outside of marriage were each crimes in their own right, common law judges worried that a woman would "cry rape" to avoid criminal liability herself. This skepticism towards rape complainants continued into modern times, often in the form of procedural requirements such as corroboration of the woman's claims, a prompt complaint, and admission of evidence of the rape complainant's past sexual history to rebut the claim of non-consent. In sum, rape law often protected men too much and women too little, and it still does in some jurisdictions. Race also complicates discussion of rape in a different way. Historically rape allegations played a large role in the oppression of racial and ethnic minorities. Rape allegations against men of color often were the pretext for lynchings and other racial violence. Rape carried the death penalty in some southern states, and rape charges were often brought against African American men for raping white women. Rape and sexual violence against African American women by white men in contrast often went unreported and unprosecuted. Rape prosecutions also played a role in enforcing prohibitions against sexual relations between races. A white woman discovered to have had sexual intercourse with a man of color faced ostracism and possible criminal prosecution if the intercourse was consensual. If she alleged rape, however, all-white juries often returned convictions on the basis of an assumption that a white woman would not willingly engage in sex with a man of color. Recent reform efforts have made some headway, but ongoing attempts to redefine rape remain deeply controversial. Even putting issues of patriarchy and gender discrimination aside, the definition of rape requires the law to essentially take a stand on how people should and should not speak to and touch one another when engaged in intimate sexual activity.

Deciding how much or how little the criminal law should regulate sexual activity would not be easy for any society, much less one with the gendered baggage that our own and most other societies carry. Figuring out where and how to draw this line is both interesting and important though. Finally, rape is very complex legally. Most serious crimes place great importance on mental state requirements.

Rape law, historically, does not, despite the fact that the one thing that separates rape from perfectly lawful sexual activity is the presence or absence of freely formed consent, a circumstance that obviously is mental in nature. To make matters even worse, rape law is incredibly varied. The rape law reform movement did not generate a consensus approach. While all jurisdictions have reformed their rape laws, they have done so in many different ways. So professors teaching rape law face multiple challenges. They must untangle a complicated legal doctrine and lead discussions that are both respectful of the various sensitivities involved as well as robust in engaging the deeper, truly difficult issues that demand resolution. These challenges shape how many professors a teach rape law in a couple of different ways. First, the sensitive nature of the topic leads many professors to abandon or limit use of hypotheticals because such hypotheticals often require a student to put themselves in the position of someone who is being raped (a particularly disturbing experience for someone who has actually been raped). Instead, professors will often substitute policy questions that ask students to approach the legal issues as legislators with an eye to deciding what the law of rape should be. Second, most professors find themselves giving students more latitude during classroom discussion. Discussing rape law is difficult enough for many students without having the professor question them closely about what they have just said. Students can also learn much from hearing what their classmates say in these more free flowing discussions, although the conversation is not always a comfortable one. Third, the incredible variety of rape law statutes means that any selection of cases or statutes will provide at best a partial and selective SEc.

F NON-CONSENT

Rape is unique among crimes against the person in being founded on a physical act that is ordinarily consensual. People don't ordinarily consent to being punched in the face. If someone punches you in the face, people generally don't presume you consented to the punch, unless you are participating in a boxing match. Sexual activity between people is ordinarily consensual though. If you have sexual intercourse with someone, the presence or absence of consent is a much more open question. So the definition of the non-consent element in rape is uniquely important and uniquely difficult among violent crimes. The fact that intercourse is ordinarily consensual, however, does not necessarily mean that consent should be considered the default position. Some rape reform advocates argue for a "yes means yes" standard that requires the giving of explicit affirmative permission for the sexually regulated act, although some take the position that explicit affirmative permission could be physical, not verbal. Others argue that a "no means no" rule would be sufficient to guarantee the autonomy of would be victims of rape. Still others argue for the elimination of the non-consent element altogether. They would define rape solely in terms of the amount and nature of the force used to accomplish the sexual act in order to keep the jury's focus on what the defendant did, not what the victim failed to do. The policy questions that lie at the heart of defining non-consent in rape are not easy to resolve. Feminist scholars disagree about whether consent must be affirmative and verbal, with some arguing that such a requirement is the only way to effectively protect rape victims, while others argue that such a requirement is paternalistic and treats woman as incapable of expressing their unwillingness to engage in sexual intercourse. Gender concerns aside, the definition of non-consent in rape also raises questions of privacy and autonomy and the government's role in regulating sexual relations. Some strongly believe that requiring such explicit communication during sexual activity robs sexual intimacy of a natural and spontaneous quality that is important. These critics believe that an affirmative consent requirement imposes by fiat one particular way of relating to one another sexually. Some argue further that the criminal law is too blunt and powerful an instrument with which to regulate our most private moments with such particularity. Others argue equally strongly that requiring a verbal or physical indication of affirmative consent is a small price to pay to both reduce the possibility of misunderstandings and to make easier the prosecution of individuals who would violate the sexual autonomy of their partners. They argue that nothing would be lost by requiring affirmative consent because sexual intimacy is at its best when grounded in mutual sexual autonomy realized through clear communication.  No easy answers are to be found here. G.

ACQUAINTANCE RAPE AND MARITAL RAPE

In an earlier era, consent would often be presumed in cases where the defendant and the victim were acquainted with one another. With the growing recognition that "acquaintance rape" was both prevalent and a serious problem this presumption no longer seemed reasonable. While few rape statutes make explicit distinctions between acquaintance and stranger rape, the existence of a prior relationship of some sort between the defendant and the victim continues to play an important role in the thinking of prosecutors, judges, and juries in deciding whether non-consent existed in any particular case. While it no longer seems reasonable to presume that you consented to sexual intercourse with someone just because you were dating him or her, it continues to seem reasonable to presume that you did not consent to sex with a complete stranger in a deserted parking lot in the middle of the night. So while prior acquaintance does not rule out rape as it once often did, it is usually not irrelevant to determining non-consent either. That said, all jurisdictions have abolished the common law's marital exemption for rape liability. Consent to acts of intercourse between people who are married is no longer conclusively presumed. To be sure, marital status, like prior acquaintance, is not irrelevant to a fact-finder's deliberations about whether consent existed as to any particular sexual act, but it is no longer the basis for a conclusive presumption.

H. MENTAL STATE AS CONSENT Contrary to the strong trend described earlier, a few states recognize a reasonable mistake of fact as to whether the victim consented as a defense to rape, although some states will only give such an instruction in the face of substantial evidence of equivocal conduct on the victim's part.

I. DEGREES OF RAPE Many jurisdictions recognized degrees of rape to distinguish more serious from less serious violations. First degree rape in many jurisdictions is reserved for defendants who commit rape with weapons, or with accomplices, or who inflict serious bodily injury on their victims.

J. THE MPC Discussion of the Model Penal Code has been noticeably absent up to this point because the Model Penal Code has had a negligible influence on how jurisdictions define rape and related sexual offenses. Even huge fans of the MPC usually acknowledge that the MPC got rape wrong. Most notably the MPC failed to abolish the marital exemption for rape and retained the early common law's requirement that claims of rape be corroborated.