Criminal law: Sex offenses Flashcards
Rape: definition
Definition (common law): Unlawful carnal knowledge of a woman by a man who is not her husband without her effective consent (“not her husband” requirement has been dropped by most states by statute).
Modern statutes have renamed “rape” as “sexual assault” or “sexual battery” and have made the crime gender neutral.
At common law, “non-consent” was an element of the crime for the prosecutor to prove. Under some modern statutes, consent is an affirmative defense for the defendant to prove. For that defense to prevail, the defendant must have had both an honest and reasonable belief that the victim consented.
Rape: consent is not available when obtained:
by force
by threats of force
from someone without capacity (e.g., underage, drunk, asleep, insane)
by fraud as to the nature of the “act” (e.g., a doctor fraudulently telling his patient that the penetration was caused by a medical instrument); other types of fraud do not invalidate consent (e.g., a man fraudulently telling a woman that he will marry her if she agrees to sex)
Statutory rape
Definition (common law): sex acts with a person under the age of consent; this is a strict liability crime, so mistake as to the victim’s age is no defense
Because statutory rape laws are designed to protect minors, the minor cannot be found guilty of conspiracy to commit statutory rape, solicitation of statutory rape, or as an accomplice to statutory rape.
Although statutory rape is a strict liability crime, “attempted statutory rape” is a specific intent crime.
Bigamy
Definition (common law): Marrying someone while still having a living spouse
Bigamy is a strict liability offense, so mistake as to the finality or effectiveness of a divorce or as to the survival of a spouse is generally not a defense
Bigamy is a Wharton Rule crime, so there can be no additional conviction of conspiracy if only two people (i.e., the bigamist and the new spouse) are involved in the crime
