Professor Sack
2023 -- Criminal Law
CHART ON CRIME OF RAPE
Elements
Actus Reus
Conduct
Traditional
Approach
Sexual intercourse
Gender of Defendant/
Gender of Victim
Marital Relationship
of Victim to
Defendant
Force or threat of
force
Male Defendant/
Female Victim
Marital Exemption
Lack of consent
Presumption of
consent. Lack of
consent can be proved
through resistance
(see below).
“Resistance to the
utmost” required.
Resistance
Physical force or
threat of physical
force required.
Elements
Mens Rea
Traditional
Approach
Mens Rea for
Intercourse
Mens Rea for Force
Mens Rea for Lack of
Consent
Purpose or Knowing
for intercourse and
force /Mens rea for
lack of consent
typically not
discussed.
Post-Reform Evolving Approach
(There are several variations listed below)
Sexual penetration including intercourse as
well as other forms of genital, anal, and oral
penetration
Gender neutral
Highly Variable – No jurisdiction has full
marital exemption, but restrictions and
limitations still common
Definition/ type of force varies - level of
physical force required varies from sexual act
itself to force likely to produce bodily injury.
Psychological pressure enough in some
jurisdictions; in some jurisdictions, no force
required and may be substituted by fear –
(usually under a reasonable standard)
Some jurisdictions keep presumption of
consent, but some switch presumption to lack
of consent. See 4 variations discussed in
class.
Physical resistance eliminated in a number of
jurisdictions, still exists in some, if required,
generally much less resistance than utmost
required; some allow verbal resistance
instead; and proof of fear (usually reasonable)
that prevents resistance may substitute; some
jurisdictions eliminate resistance requirement
entirely.
Post-Reform Evolving Approach
Purpose or Knowing for intercourse and
force/mens rea for lack of consent varies –
can be reckless, negligent (most common) or
strict liability
Note: Conduct that does not meet the requirements for first degree rape, may be covered
under other statutes, sometimes providing for a wider range of punishment or lesser
penalties.