Criminal Law #9: Rape II Tuesday, Feb 28 2006
1L and Criminal Law and Neil Wehneman and University of Cincinnati College of Law 4:02 pm
In this, our second episode on rape, we will examine several topics. They include a definition of force, varying levels of consent, consent obtained by deception, and the mens rea of rape.
State in the Interest of M.T.S.
People v. Evans
Boro v. Superior Court
Commonwealth v. Sherry
Commonwealth v. Fischer
4 Responses to “Criminal Law #9: Rape II”
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[Neil: this is a comment I moved from elsewhere on the site]
Let us suppose a man acts on the belief that a woman has consented to
some particular sexual activity when in fact she has not. Should he be
considered guilty of sexual assault?
considering nature of consent, “reasonable belief” and the role of intent in
establishing criminal liability beyond a reasonable doubt
The key question in your hypothetical is whether the perpetrator has the required mens rea. You’d have to look at the statute to see if it’s negligence, reckless, knowledge, or purpose on the attendant circumstance of lack of the consent.
If it’s negligence, then to convict the state would have to show beyond a reasonable doubt that the defendant was criminally negligent (which is a higher standard than civil negligence) in his being subjectively wrong about her consent.
If it’s reckless, then to convict the state would have to show beyond a reasonable doubt that the defendant was criminally reckless (which is a higher standard than civil recklessness) in his being subjectively wrong about her consent.
If it’s knowledge, then to convict the state would have to show beyond a reasonable doubt that the defendant knew that the female hadn’t consented. Based on his assumed subjective belief that she consented, this would be very difficult to show.
If it’s purpose, then to convict the state would have to show beyond a reasonable doubt that the defendant had the purpose to have sex with someone who hadn’t consented. Based on his assumed subjective belief that she consented, this would be very difficult to show.
- Neil
P.S. This sounds like a law prof hypo. I assume no liability for honor code violations if you’re seeking outside help on a graded assignment :).
Neil,
I have a question about rape relating to intoxication and I have been unable to find the answer anywhere. If a woman is intoxicated to the point of “blacking out” and vomiting, is there a law stating that she cannot legally give consent because of her intoxication and subsequently impaired state of mind? I am most curious about any law relating to this in the State of Indiana.
-Mike
Mike,
You know the usual drill: I can’t give legal advice because I’m not a lawyer. If you are in need of legal advice, retain a lawyer.
That said, the relevant statute in Indiana appears to be IC 35-42-4-1, which states in most pertinent part:
[rape occurs when] (2) the other person is unaware that the sexual intercourse is occurring;
However, it sounds like you’re talking about a situation when the person knows that sex is occurring, but is impaired. I’d have to go through the Indiana case law (as opposed to the statutes) to find out the answer to that. Unfortunately, I’m not in a position to do that at the moment.
However, I do remember plenty of posters at Ohio State (my undergrad school) stating that you can’t legally give consent when drunk, which could lead to a rape charge, or perhaps other sex crime.
Take care.
- Neil