Chapter Ten

1. Chapter Ten Crimes Against Persons: Criminal Sexual Conduct, Bodily Injury, and Personal Restraint Joel Samaha

2. Chapter Ten Learning Objectives • Understand that voluntary and knowing consensual behavior between two adults is legal, healthy and desired. • Understand that crimes against persons boil down to four types: taking a life; unwanted sexual invasions, bodily injury; and personal restraint. • Understand that the vast majority of rape victims are raped by men they know. • Understand that during the 1970s and 1980s sexual assault reform changed the fact of criminal sexual assault law. • Understand the elements of modern rape law. • Understand that force beyond that required to complete sexual penetration or contact is not always required to satisfy the force requirement in rape.

3. Learning Objectives (cont.) • Understand that rape can be accomplished with no extrinsic force, or threat of force, if fraud of fact or fraud of inducement is used by the perpetrator. • Know that rape is a general intent crime. • Remember that statutory rape is a strict liability crime in most states. • Know that assault and battery are two separate crimes. • Appreciate that since the early 1970’s, domestic violence crimes have been transformed from a private concern to a criminal justice problem. • Remember that stalking, although an ancient practice, is a new crime that’s based on causing fear. • Know that kidnapping and false imprisonment violate the right of locomotion.

4. Sex Offenses • Originally, criminal law recognized only • Common law rape • Intentional, forced, nonconsensual, heterosexual vaginal penetration (by a non-spouse) • Common law sodomy • Anal intercourse between two males • Modern opinions relax definitions of rape • Sexual assault or criminal sexual conduct statutes of the 1970s and 1980s have expanded the definitions.

5. Rape • Vast majority of rapes are committed by acquaintances • Aggravated rape (in this chapter) = • Rape by strangers or men with weapons who physically injure victims • Unarmed acquaintance rape • Nonconsensual sex between dates, lovers, neighbors, co-workers, employers

6. Criminal Justice Response to Rape • Good at dealing with aggravated rape • Not so good at dealing with acquaintance rape • Victims less likely to report • Police less likely to believe • Prosecutors less likely to charge • Jurors less likely to convict • Unarmed acquaintance rapists are likely to escape punishment if victims don’t follow middle-class morality rules • Many rapes are committed by men against women

7. History of Rape Law • Common Law rape • Carnal knowledge of a woman forcibly against her will • Sexual intercourse by force or a threat of severe bodily harm (actus reus) • Intentional vaginal intercourse (mens rea) • Intercourse between man and woman not his wife (attendant circumstance) • Intercourse without woman’s consent (attendant circumstance) • Rape was a capital offense • Rape victims were allowed to testify against rapist • Rape victims credibility was determined by • Chastity • Prompt reporting • Other witness corroboration

8. Criminal Sexual Conduct Statutes • MPC: • Eliminated consent as an element in rape • Recognized difficulty in drawing the line between forcible rape and reluctant submission Transformation 1970’s and 1980’s Abolished the corroboration rule Enacted rape shield statutes Relaxed prompt reporting rule Most states abolished the marital rape exception Shift of emphasis from non-consent of victim to unwanted advances of perpetrator

9. Criminal Sexual Conduct Statutes • Arose in 1970s and 1980s • One comprehensive statute • Expanded definition of rape to include all sexual penetrations • Created less serious crime of sexual contact • Sex offenses made gender-neutral • Seriousness of offense graded by criteria • Penetrations more serious than contacts • Forcible penetrations and contacts are more serious than simple nonconsensual penetrations and contacts • Physical injury to victim aggravates the offense • Rapes involving more than one rapist, “gang rapes” are more serious than one single rapist

10. Case: People v. Evans • Facts: Evans, the defendant, forced sexual intercourse on the victim. • Issue: Was the act rape of seduction? • Holding: It does not appear violence accompanied the acts. Not guilty of rape.

11. Elements of Modern Rape law Actus reus – sexual penetration by force or threat of force Mens rea- intentional sexual penetration Circumstance –non consent of the victim

12. Rape Actus Reus • Force and Resistance rule • No force if victims consented • Historically in practice victims had to prove they hadn’t consented • Resistance showed non-consent • Reynolds v. State (1889) • Proof of non-consent is peculiar to rape • Default position is consent • Amount of resistance required has changed over time • Utmost resistance standard (resist with all the power they had) • Brown v. State- (1906) • Casico v. State –resist to utmost with most vehement exercise of every physical means…. • Reasonable resistance rule (look at the totality of the circumstances) • Jones v. State (1984) • Many new statutes have dropped the resistance requirement entirely. • But resistance may be needed to show force in acquaintance rapes. • Jones v. State (1992)

13. Force Requirement • Extrinsic Force approach: • Requires some act of force in addition to the muscular movements needed to accomplish penetration • Commonwealth v. Berkowitz • Intrinsic Force approach • Requires only the amount of physical effort necessary to accomplish penetration • State in the interest of M.T. S.

14. Case: Commonwealth v. Berkowitz • Facts: Berkowitz, the defendant, had sexual intercourse with the victim. The victim was saying no but didn’t physically resist. • Issue: Did he have sexual intercourse by force? • Holding: Where there is a lack of consent, but no showing of either physical force, a threat of physical force, or psychological coercion, the “forcible compulsion” requirement . . . is not met.” • extrinsic force approach.

15. Case: State in the Interest of M.T.S • Facts: C.G. claimed she woke up to find M.T.S. on top of her with his penis in her vagina • Issue: Did he have sexual intercourse by force? • Holding: “We conclude. . . That any act of sexual penetration engaged by the defendant without the affirmative and freely given permission of the victim to the specific act of penetration constitutes the offense of sexual assault”. The element of physical force was met simply by an act of nonconsensual penetration involving no more force than necessary to accomplish the result • Intrinsic force approach

16. Threat of Force • Exceptions to Threat of Force Rule: • Deception can substitute for force • Fraud in fact = tricking victim into believing that the act she consented to was not sexual intercourse • Moran v. People • Fraud in the inducement (does not substitute for force) = getting victims consent to sexual intercourse by fraudulent means (there was consent, so no rape) • Actual use of force isn’t required to satisfy the force requirement, the threat of force is enough • Must show • Subjective fear (victim honestly feared imminent and serious bodily harm) • Objective fear (fear was reasonable under the circumstances) • Social science research on harm to resisting victim

17. Rape Mens Rea Rape is a General Intent Crime Defendants have the criminal intent when they intend to have intercourse Mens rea concerning the attendant circumstances may vary by statute

18. Mens Rea re: Attendant circumstance of nonconsent • Continuum of mensrea • Some states adopt strict liability. As long as offender intended to have intercourse, if the victim did not consent, it is rape (regardless of whether offender reasonably thought he/she consented or not). • Commonwealth v. Fischer • Some states have adopted a negligence standard. If the offender had a reasonable and bona fide belief that the victim consented, there is no rape. (If the defendant was not aware but should have been, then he/she is said to be negligent as to the attendant circumstance, and it will be rape) • Some states have adopted a reckless standard. The defendant has to be aware that there is a risk that the victim hasn’t consented to sexual intercourse and nevertheless disregard that risk for the offense to be rape • Regina v. Morgan • Critics argue that, due to the severe penalties, the standard should be knowing. (Defendants must know that the victim did not consent)

19. Statutory Rape Having sex with minors Age of victim substitutes for force requirement Non-consent is not an element Consent is not a defense because minors cannot give consent (legally incompetent to consent) Some states allow for reasonable mistake of age

20. Grades of Rape • Most statutes distinguish between aggravated rape and simple rape • Aggravated rape involves additional circumstance • Serious bodily injury to victim • Stranger commits rape • Rape occurs in connection with other crime • Rapist is armed • Rapist has accomplices • Victim is minor and rapist is several years older

21. Discussion Activity Review the article below regarding child sex trafficking. Are these offenders “sex offenders”? Is a life sentence to sever for these offenders? http://childtrafficking.wordpress.com/2010/06/01/punishment-against-human-trafficking/

22. Battery • Unwanted and unjustified offensive touching • Requires contact with victim’s body • Actus reus: unlawful touching (without consent) • Mens rea: levels of mens rea from MPC • Some injury required • Minor injury = misdemeanor • Serious injury = felonies

23. Assault • Attempted battery assault • Specific intent to commit a battery plus taking substantial steps toward completion, but no completion • Incomplete physical injury, victim awareness is irrelevant • Threatened battery assault • Aka intentional scaring or menacing • Specific intent to frighten victims, and some act giving fright • Words alone are generally insufficient, but with gestures its enough • Awareness of victim is generally essential (check statute) • Conditional threats are generally insufficient

24. Domestic Violence Crimes • Domestic violence may be represented in many crimes • Some states have specific dv crimes which parallel assault and battery charges • Current and former family members, household members, co-parents • Punishments for dv assault and battery tend to be enhanced from normal assault and battery

25. Discussion Activity Read the article below regarding the use of Lethality Assessments for domestic violence crimes and discuss what benefits you see can come from using this type of assessment. http://www.startribune.com/local/east/156874195.html?refer=y

26. Case: Hamilton v. Cameron • Facts: During an argument, Cameron, the defendant, told his wife he was going to “blow her head off”. • Issue: Was he guilty of domestic violence? • Holding: Because the victim recanted her statement and testified that she was not threatened and did not believe she was in imminent harm, the court found there was insufficient evidence to prove state of mind of victim and other essential elements of the crime. There was no other evidence from which this could be inferred.

27. Stalking • Intentionally scaring another person by following, tormenting, or harassing him or her • Fill in gaps in law by criminalizing conduct which falls short of assault and battery • All states have enacted some sort of stalking law (since early 1990s) • Statutes vary greatly • Bad result = fear • Subjective fear + objective fear • Victim is afraid and its reasonable for victim to be afraid • Subjective fear only test • Only need to show victim was actually afraid • Objective fear only • Reasonable person would be afraid • Intent to instill fear • Actors intent to instill fear, whether or not victim or other was or would have been afraid

28. Stalking (cont.) • Stalking Actus Reus: • Variety of actions, generally involving maintaining physical proximity or visual proximity • Some states require threats • All states require conduct be repeated • Some states provide list of very specific acts. • Stalking Mens Rea • Result crime, • Offender must have specific intent to commit the actusreus • Offender must also have mental attitude causing bad result but statutes vary as to which mental attitude is needed. • Subjective fault (half states)—offender himself knew behavior would cause result • Objective fault (1/3 states)—reasonable person would know behavior would cause bad result.

29. Cyberstalking Using internet, e-mail, other electronic communications devices to stalk another person through threatening behavior.

30. Discussion Activity Review the below article concerning cyberstalking. ● Do you think cyberstalking is something that will become more prevalent in our society? ● How is cyberstalking different from “stalking”? ● Do you think these cases are more or less difficult to prosecute? http://www.kirotv.com/news/news/man-charged-in-prolific-cyberstalking-case-police-/nDSF3/

31. Case: State v. Hoying • Facts: Hoying, the defendant, asked Criswell out on a date. She declined and Hoying became upset and sent Criswell 105 emails despite an order for protection. • Issue: Did Hoying cyberstalk the victim? • Holding: Court held that a reasonable jury could have inferred from the content of the e-mails that Hoying knew victim would consider the messages to be a threat to her physical safety

32. Kidnapping • Common law crime • Originally involved taking king’s relatives (to another country) for ransom • Seizing • Carrying away (asportation of) or • Confining • By force, threat of force, fraud or deception • Another person • With intent to deprive the other person of his liberty

33. Kidnapping (cont.) • Actus Reus: seizing and carrying away • Distance has become a non-issue • Quality and character of the carrying away not the actual distance • Kidnapping Mens Rea • Specific intent to confine, restrain or hold victims in secret. • Intent to isolate the victim from the prospect of release or intervention. • Grading Seriousness of Kidnapping • Simple • Aggravating • For purpose of: sexual invasions, hostage taking, ransom, robbing, murdering, blackmailing, terrorizing victim, achieving political claims

34. Case: People v. Allen • Facts: Allen, the defendant, got into Young’s running vehicle with Young’s 7 year old daughter inside the car. Allen locked the doors and backed out of the driveway before hitting the curb and coming to a stp 30-40 feet away. • Issue: Did Allen move her a “substantial” distance? • Holding: Court concluded that while absolute footage the distance moved may have been short, the character of moving the victim was of a character sufficient to justify jury’s finding of substantially. Movement was made to prevent victim from getting/keeping her car.

35. False Imprisonment • Lesser form of kidnapping • Deprive a person of personal liberty • No asportation requirement • Deprivation of liberty is brief • Compelling a person to remain where he does not wish to remain • Actusreus • forcible detention—even if brief • Restraint must interfere substantially with the victim’s liberty (MPC), but in most states any interference is enough • Physical force or threatened force accomplishes the detention • Mens Rea: • specific intent to confine and restrain another without his or her consent