Chapter Ten
Crimes Against Persons:
Criminal Sexual Conduct, Bodily
Injury, and Personal Restraint
Chapter Ten Learning Objectives
• Understand that crimes against persons boil
down to four types: taking a life; unwanted
sexual invasions, bodily injury; and personal
restraint.
• Understand that voluntary and knowing
consensual behavior between two adults is
legal, healthy and desired.
• Understand that the vast majority of rape
victims are raped by men they know.
Chapter Ten Learning Objectives
• Understand that during the 1970s and 1980s sexual
assault reform changed the fact of criminal sexual
assault law.
• Understand that force beyond that required to
complete sexual penetration or contact is not always
required to satisfy the force requirement in rape.
• Understand that rape is a general intent crime.
• Understand that statutory rape is a strict liability
crime in most states.
Chapter Ten Learning Objectives
• Understand that assault and battery are two
separate crimes.
• Understand that domestic violence since the early
1970s has been transformed from a private concern
to a criminal justice problem.
• Understand that stalking, although an ancient
practice, is a new crime.
• Understand that kidnapping and false imprisonment
violate the right of locomotion.
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.
Rape
• Vast majority of rapes are committed by
acquaintances
• Aggravated rape
– Rape by strangers or men with weapons who
physically injure victims
• Unarmed acquaintance rape
– Nonconsensual sex between dates, lovers,
neighbors, co-workers, employers
Criminal Justice Response to Rape
• Good at dealing with aggravated rape
• Not so good at dealing with acquaintance rape
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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 men
History of Rape Law
• Common Law rape
– Carnal knowledge of a woman forcibly against her
will
1. Sexual intercourse by force or a threat of severe
bodily harm (actus reus)
2. Intentional vaginal intercourse (mens rea)
3. Intercourse between man and woman not his wife
(attendant circumstance)
4. Intercourse without woman’s consent (attendant
circumstance)
History of Rape Law (continued)
• 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
Criminal Sexual Conduct Statutes
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Transformation 1970s and 1980s
Abolished the corroboration rule
Enacted rape shield statutes
Relaxed prompt reporting rule
Most states abolished the marital rape
exception
• Shift of emphasis from nonconsent of victim
to unwanted advances of perpetrator
Model Penal Code
• Eliminated consent as an element in rape
• Recognized difficulty in drawing the line
between forcible rape and reluctant
submission
Sexual Assault 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
Sexual Assault Statutes
• 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
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
Rape Actus Reus
• Force and Resistance rule
– No rape if victims consented
– Historically in practice victims had to prove they
hadn’t consented
• Resistance showed nonconsent
• Reynolds v. State (1889)
• Proof of nonconsent is peculiar to rape
– Default position is consent
Rape Actus Reus (continued)
– Amount of resistance required has changed over time
• Utmost resistance standard 1850’s through the 1950’s
(resist with all the power they had)
– Brown v. State (1906)…
– Casico v. State (1947) resist to utmost with most vehement
exercise of every physical means….
• Reasonable resistance rule 1950’s forward - 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)
Force Requirement
• Extrinsic Force approach:
– Requires some act of force in addition to the
muscular movements needed to accomplish
penetration
• Example: Commonwealth v. Berkowitz (1994)
• Intrinsic Force approach
– Requires only the amount of physical effort
necessary to accomplish penetration
• Example: State in the interest of M.T. S. (1992)
Summary of case holdings
• Berkowitz demonstrates the extrinsic force
approach:
– “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.”
– “The degree of physical force, threat of force, or
psychological coercion . . . Must be sufficient to
prevent resistance by a person of reasonable
resolution, but the “peculiar situation” of the victim
and other subjective factors should be considered by
the court in determining resistance, assent, consent.”
Summary of case holdings
• MTS highlights the intrinsic force approach:
• “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
Threat of Force
• Actual use of force isn’t required to satisfy the force
requirement, the threat of force is enough
• Prosecution must show 2 types of fear:
1. Subjective fear (victim honestly feared imminent and
serious bodily harm)
2. Objective fear (fear was reasonable under the
circumstances) Factors may include Ages, Sizes, Mental
Condition, Setting, Position of Authority or Control
• Social science research on harm to resisting victim –
“may threaten victims’ lives”
Exceptions to the force and
resistance rule
• Victim Incapacitated – Intoxication, Mental
deficiency or Insanity
• Age – Children Under the Legal Age of
Consent
• Deception can substitute for force
Exceptions to the force and
resistance rule
• Deception can substitute for force
– Fraud in fact = tricking victim into believing that
the act she consented to was not sexual
intercourse
• Example: Moran v. People (1872)
– Fraud in the inducement (does not substitute for
force) = getting victims consent to sexual
intercourse by fraudulent means (there was
consent, so no rape)
• Example: Boro v. Superior Court (1985) – “Dr.
Feelgood”
Rape Mens Rea
• Rape is General Intent Crime
• Defendants have the criminal intent when
they intend to have intercourse
• Mens rea concerning the attendant
circumstances may vary by statute
Mens Rea re:
Attendant circumstance of nonconsent
– Continuum of mens rea
• 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).
– Example: Commonwealth v. Fischer (1998)
• 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)
– Example: People v. Mayberry (1975)
• 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
– Example: Regina v. Morgan (1975)
– Critics argue that, due to the severe penalties, the standard should be
knowing. (Defendants must know that the victim did not consent)
Statutory Rape
• Having sex with minors
• Age of victim substitutes for force
requirement
• Nonconsent is not an element
• Consent is not a defense because minors
cannot are not legally incompetent to consent
• Strict Liability Crime in most states; however,
some states allow for reasonable mistake of
age
Grades of Rape
• Most statutes distinguish between aggravated
rape (1st Degree) and simple rape (2nd Degree)
• Aggravated rape involves additional circumstance
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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
Bodily Injury Crimes
Battery
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Unwanted and unjustified offensive touching
Requires contact with victim’s body
Actus reus: unlawful touching (without consent)
Mens rea: levels of mens rea from Model Penal Code
Some injury required:
– Minor injury = misdemeanor
– Serious injury = felonies
Bodily Injury Crimes
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
• Conditional threats are generally insufficient
Assault
• Historically, assaults were all misdemeanors
• Modern statutes, assaults graded and include
some felonious assaults
Domestic Violence Crimes
• Domestic violence may be represented in
many crimes
• Some states have specific domestic violence
crimes which parallel assault and battery
charges
– Current and former family members, household
members, co-parents
– Punishments for domestic violence assault and
battery tend to be enhanced from normal assault
and battery
Hamilton v. Cameron (1997)
Summary of case holding
• Because 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.
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
Stalking (continued)
• 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 actus reus
– 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.
Stalking (continued)
• Bad result = fear
• Four Approaches Among the States:
– 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
Cyberstalking
• Using internet, e-mail, other electronic
communications devices to stalk another
person through threatening behavior.
– Example: State v. Hoying (2005)
State v. Hoying (2005)
Summary of case 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
or to that of her father
• A reasonable jury could find that the
messages would cause mental distress
• Record supports maximum sentence due to
defendant’s great likelihood of recidivism
Kidnapping
• Common law crime – Originally involved taking king’s
relatives (to another country) for ransom
• 6 elements existed under the Common Law:
1.
2.
3.
4.
5.
6.
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
Kidnapping (continued)
• Modern crime
• Famous Cases
– State v. Hauptmann (1935) - Charles Lindbergh’s son
– Symbionese Liberation Army - Patty Hearst (1974)
• Actus Reus: seizing and carrying away
– Distance has become a non-issue
– Quality and character of the carrying away not the
actual distance
• Examples:
– People v. Chessman (1951)
– People v. Allen (1997)
People v. Allen (1997)
Summary of case holding
• Court concluded that while absolute footage
the distance moved may have been short, the
character of moving the victim was of a nature
sufficient to justify jury’s finding of
substantially. Movement was made to
prevent victim from keeping her car,
protecting her child, moving from relative
safety across an active thoroughfare...greater
risk of injury.
Kidnapping (continued)
• 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 Circumstances:
• Most common aggravating factors are for purpose(s) of:
– sexual invasions, hostage taking, ransom, robbing, murdering,
blackmailing, terrorizing victim, achieving political claims
False Imprisonment
• Lesser form of personal restraint than
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
False Imprisonment (continued)
• Actus reus
– forcible detention—even if brief
• Under the Model Penal Code, Restraint must
interfere substantially with the victim’s liberty,
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