crim law: march 26 2010 class notes

forcible rape.
1. sex
2. by force
3. without consent.

rape is a reeeeeeeally serious crime.

we will be discussing doctrinal changes and procedural changes

state v. alston.
the question is whether or not the facts meet the requirements of the crime.
there's a lot of unclarity about the consensual nature of their prior relationship.
brown moves out, and alston comes to her school and threatens him to come with him.
alston says that brown's mother is the problem, and that she has to have sex with him or he will "fix her face"
they went to his friend's house.
alston asks "are you ready" and brown says "no"
brown lays on the bed, alston pushes her legs apart and they have sex.

is that rape?
where there has been consensual sex in the past, we have to have something affirmative to show that there was no consent. that is difficult at this point
how do we establish force?
1. grabs arm
2. afraid
3. "fix her face" (control)
4. brown didn't feel like she could leave the house
5. he asked if she's ready, and she says "no"
6. pushed legs apart

not a lot of force, but no consent.
alston won because there wasn't enough physical evidence of force.

what about points 4 - 6?

time number 2:
1. alston says, "let me in" brown says no
2. alston says i'll kick in the door, brown says no
3. alston kisses and brown resists
4. alston picks her up and puts her on the bed
5. brown says yes

see note #6.
if brown is enough force to make non-consensual sex rape, then almost all relationships would be rape.

rusk v. state.
eddie rusk told the victim "come up" and she said no.
he took her keys and she said she was scared.
they are alone in the apartment and she doesn't leave.
the victim cries, and says if i give you a bj will you please not kill me
victim is afraid
rusk puts his hands around the victim's neck

rule under hazel v. state is that force is an essential element and the evidence must warrant a conclusion either that the victim resisted and her resistance was overcome by force or that she was prevented from resisting by threats to her safety.

resistance requirement: did the victim resist?
hands on throat and look in the eyes that victim was afraid of = Q for the jury

the court distinguishes that "she must follow the natural insticut of every proud female to resist, by more than mere words, the violation of her person... she must make it plain that she regards such sexual acts as abhorrent and repugnant to her natural sense of pride. she must resist unless the defendant has objectively maifested his intent to use physical force to accomplish his purpose... in the absence of any verbal threat to do her grievous bodily harm or the display of any weapon and threat to use it, i find it difficult to understand how a victim could participate in these secual activiites and not be willing.

objective standard: threats must have a reasonable response.
was the victim's responses to the physical contact a reasonable resistance?

what about the mens rea? what does it matter that rusk's mentality was not to rape her?

we want to encourage people to not have uncertain sex. however, whether or not we should punish someone for not doing that is a different

should we deter creepiness?
should we punish rusk's behavior with a five-year term?
does no sometimes mean yes?