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Flashcards in Rape Deck (15):

Actual intercourse
Only males perpetrators; only females victims
Nonconsensual oral or anal sex not rape but other offense (sodomy)

Common Law Forcible Rape Actus Reus


Original common law, husband immune from prosecution for rape of wife
Could be accomplice
Could be convicted of assault or battery

Common Law Marital Immunity


General Rule: forcible rape is not simply nonconsensual sex. Must prove male acted forcibly or, by threat of physical force.

Actus Reyes of Forcible Rape: Force


for forcible rape prosecution, prosecutor had to prove male used or threatened substantial force upon female. Common law developed resistance requirement.

Original common law Actus Reyes of Forcible Rape


If male uses or threatens force likely to cause death/serious bodily injury, woman not required to resist.
If male uses only moderate force, female required to resist to utmost or until exhausted/overpowered.

Common Law Resistance Rule


Many states retain requirement but require less resistance, no longer to utmost, but only ___________ resistance. Leave to jury to decide sufficiency of resistance.



Rape is a ________ intent



Defendant need not possess intent that sex be nonconsensual. Enough he possessed morally ___________ state of mind regarding lack of consent.



Defendant not guilty of rape if at time of sex he had genuine & reasonable belief victim voluntarily consented.

Mistake of fact


Force is not element of offense
Underage female's lack of consent is not element of offense
Underage depends on jurisdiction
Many states divide statutory rape into degrees, based on female's age, and on difference in age between female & male. Most serious penalties when male is adult and female is prepubescent.
Most jurisdictions treat statutory rape as strict liability offense. Defendant guilty of statutory rape even if reasonably believes victim was old enough.(Some states – statutory reasonable mistake of age defense, limited).

Modern Statutory Rape


At common law, a seducer is not a rapist. A male is not guilty of rape if he fraudulently induces a female to consent to intercourse.

Fraud in the Inducement


Consent to engage in sex invalid if as a result of fraud, victim unaware that she has consented to sex. There can be a rape prosecution.

Fraud in the Factum


Evidence not admissible unless relevant. Relevant if tends to prove or disprove disputed fact at issue. Judge can exclude evidence if probative value is outweighed by risk will cause prejudice to opposing party.

Rape Shield


(1) prior consensual sex with accused, (2) prior consensual sex with people other than accused, & (3) reputation regarding chastity.

Rape Shield


Generally deny defendant ability to cross-examine complainant or offer evidence concerning her prior sexual conduct or her reputation.

Rape Shield