Under the United State Common Law, rape has four main elements:

  1. Sexual intercourse (includes some penetration no matter how slight)
  2. With a woman not his wife
  3. Using physical force
  4. Without her consent*

*The victim must give consent at the time the mens rea and actus reus come together. Consent must be freely and voluntarily given, express and unequivocal. In most cases, consent will be an affirmative defense.

MPC Section 213.1, “a male who has sexual intercourse with a female not his wife is guilty of rape if:

(a) he compels her to submit by force or by threat** of imminent death, serious bodily injury, extreme pain or kidnapping, to be inflicted on anyone; or

(b) he has substantially impaired her power to appraise or control her conduct by administering or employing without her knowledge drugs, intoxicants or other means for the purpose of preventing resistance; or

(c) the female is unconscious; or

(d) the female is less than 10 years old.”

**The “force or threat” requirement has been applied differently throughout the country. In some jurisdictions, penetration is serious bodily injury and is enough to show force (See State in the Interest of MTS holding that the physical force requirement acts only to “qualify the nature and character of the sexual penetration.”) Other jurisdictions require that the threat of force involve death or serious bodily injury. (See People v. Evans holding defendant not guilty because no finding of forcible compulsion or threat beyond a reasonable doubt.)

People v. Evans, 85 Misc. 2d 1088 (1975)

Case Name: People v. Evans
Citation: 85 Misc. 2d 1088 (1975)

Facts: Evans used psychological techniques on a vulnerable college girl. The testimony showed that Evans was a predator and that the girl was naïve and gullible. When Evans had the girl alone in his apartment he said “I could kill you. I could rape you. I could hurt you physically.” The girl was frightened but the sexual intercourse was seemingly consensual and there was no showing of force.

Issue: Whether we should view the controlling state of mind from the point of view of the person who hears the words and interprets them as a threat or the state of mind of the person who utters such words.

Defendant’s argument: Evan’s words meant that the girl was foolish but does not show that he would have used force if the girl did not submit. Seduction is not a crime.

State’s argument: Evan’s words were intended for the girl to do what he said or else he would use force.

Holding: Not guilty because the court cannot find forcible compulsion or threat beyond a reasonable doubt.

Reasoning: The controlling state of mind should be from the person who utters them because, this being a criminal trial, the criminal intent of the defendant must be shown beyond a reasonable doubt. If the defendant did not intend a threat, then there is not the necessary criminal intent to establish culpability.

State in the Interest of M.T.S., 129 N.J. 422 (1992)

Case Name: State in the Interest of M.T.S.
Citation: 129 N.J. 422 (1992)

Facts: A 17 year old boy was convicted of second-degree sexual assault of a 15 year old girl. The statute  stated “a person who commits an act of sexual penetration using physical force or coercion is guilty of second-degree sexual assault.” There was discrepancy between the testimonies.

Issue: Whether the element of “physical force” is met simply by an act of non-consensual penetration involving no more force than necessary to accomplish that result.

Defendant’s argument: Physical force means force used to overcome lack of consent. Requires the application of some amount of force in addition to the act of penetration.

State’s argument: Physical force entails any amount of sexual touching brought about involuntarily. Sexual penetration coupled with a lack of consent satisfies the elements of the statute.

Holding: Appellate court reversed and conviction reinstated.

Reasoning: The court discussed that the legislature’s concept of sexual assault was parallel to the law of assault and battery – “any unauthorized touching of another.” In other words, the court reads “nonconsent” into the statute. The defendant has to have consent, “freely given.” The physical force requirement acts only to “qualify the nature and character of the sexual penetration.”

State v. Rusk, 289 Md. 230 (1981)

Case Name: State v. Rusk
Citation: 289 Md. 230 (1981)

Facts: Rusk was convicted of second degree rape. The prosecuting witness’ testimony and the defendant’s testimony were quite different. The jury convicted Rusk but the conviction was reversed by the Court of Special Appeals which concluded that there was insufficient evidence of Rusk’s guilt to permit the case to go to the jury.

Issue: Whether the defendant had the requisite “force or threat of force.”

Defendant’s argument: The sex was consensual and Rusk did not do anything to “force” the girl to have sex with him. The prosecuting witness’ testimony stating, “The way he looked;” is not enough to show force.

State’s argument: The girl feared Rusk and although it may have been unreasonable, there was enough evidence (with particular focus on the actual force placed on the girl’s neck) to convict the defendant. Furthermore, the jury believed the girl not Rusk and the appellate court cannot substitute its own judgment.

Holding: Convicted reinstated. The Court of Special Appeals substituted its own view of the evidence for that of the judge and jury. (However, the CSA actually reversed on the basis that the case should not have gone to the jury.)

Reasoning: The vast majority of jurisdictions have required that the victim’s fear be reasonably grounded in order to obviate the need for either proof of actual force on the part of the assailant or physical resistance on the part of the victim.

Dissent: A fact finder can only look to see if the victim’s fear is reasonably grounded after the court determines that the defendant’s conduct under the circumstances was reasonably calculated to give rise to a fear on her part to the extent that she was unable to resist. The actual force on the girl’s neck (if it did occur) came after they were already lying naked in bed. It is hard to tell this from just seduction, she never resisted and never described what “the look” was that the defendant gave her. Also, the defendant made no response to the girl’s question “If I do what you want, will you let me go without killing me?” (The dissent did not seem to believe the girl’s testimony.)