Criminal
Law Class Notes
“…[I]t
is the task of the law to form and project, as well as mirror and reflect…” –
Justice John Harlan (1971)[1]
“Nuh uh!” – Justice Antonin Scalia (never)
Rape
When
we study murder, manslaughter, and negligent homicide under the Model Penal
Code, the actus
On
the other hand, almost all of what constitutes rape is the actus
Until
the 90s, there was not a single Criminal Law casebook that had a chapter on
rape. The only particular crime that got
its own chapter was criminal homicide.
There are still some Criminal Law casebooks that don’t have a
chapter on rape. (Does Dressler suggest
this is political?)
Some
law professors really want to skip rape.
For many professors, it’s a “lose-lose” proposition.
Dressler
says that there is no other crime that we cover that demonstrates so well that
the law is not fixed and does not just emerge.
Instead, it is a function of what our culture is like in our particular
era. The view of what constitutes rape
has changed considerably in the last twenty years, and the law may change even
more in the next 20 years.
When
the Model Penal Code was enacted, the provisions on sexual offenses were viewed
as very progressive. Today, they are
seen as archaic.
We
are going to try to avoid political correctness.
We
will not spend time on these things, but they are important:
·
Racism played a big role in the law of rape. Recall, for example, the Scottsboro
case. Rape carried the death penalty for
a number of years, but the only states that carried the death penalty were
Southern states, and the only people who were ever executed for rape were
non-white defendants who were convicted of raping white women. In Southern states, rape was used as a tool
to ensure racial segregation.
·
The traditional definition of rape speaks of men
raping women, and that’s the only way it can happen at common law. Most current rape statutes, on the other
hand, are gender-neutral. The
overwhelming number of rape cases involve males raping females.
·
A number of states have changed the name of rape to “sexual
battery”. Feminists wanted to change the
name of the crime because they hoped to get rid of the ideas that were linked
to the crime. That has failed
completely, according to Dressler. After
a while, feminists decided that they want to send the message that rape is
different from assault and battery, and that in fact it is something more. In any case, most contemporary rape statutes
don’t call rape “rape”.
·
This is a controversial area and the law is in deep
flux. Should the law merely reflect our
current values, or should the law try to change things? Dressler seems to be definitely in favor of
judicial activism. Should the criminal
law be active? If a man has committed an
act that is rape according to the law even though society at large does not
believe the act to be rape? Is there a
due process/legality problem here? In
other words, if the legislature is ahead of culture, should we let statutes
trump culture?
·
We’re going to see more and more reform that seems
to make it easier and easier to punish men for rape. More and more sexual acts are being
incorporated into the definition of rape.
Has the law gone far enough, or has it gone too far? Has the pendulum swung too far in the other
direction?
Dressler
wants to suggest that in some areas the law has gone too far. Back at the time of the Oklahoma City
bombing, Bill Clinton moved to broaden the powers of the FBI. A similar thing happened with 9/11 and Bush and
the Patriot Act. All of the sudden,
people in the Senate started talking about the importance of civil
liberties. Orrin Hatch and Jesse Helms
were suddenly arguing for civil liberties because they were afraid that the “left-wing”
in power would use government power to fight the NRA and other “right-wing”
organizations. The legislation failed,
and Bill Clinton didn’t get what he wanted.
Dressler
suggests that in rape law, there is no such “yin and yang”. It’s totally lopsided. On the one hand, you have conservative
law-and-order types who want harsher laws.
On the other hand, you have feminists on the left who want more power to
prosecutors to fight rape. Both sides
are on the same end of the issue. Dressler’s
article in the Cleveland State Law Review[2]
suggests that some things have gone too far and some things have not gone far
enough.
Consider
murder, kidnapping, and rape. Where does
rape fit in with murder and kidnapping?
What is the most serious? What is
the least serious? Does it depend on the
individual case? It is suggested that
rape is more serious than kidnapping. Is
kidnapping an offense that will have life-long emotional trauma? Also, kidnapping involves harm to more
people.
On
the other hand, how might we argue that rape is worse than murder? Rape involves a loss of happiness over time.
What
about the social harm? There is arguably
greater harm to society as a whole from murder than from rape.
In Coker
v. Georgia, the Supreme Court found that you may not execute a rapist based
on the Eighth Amendment.
Could
kidnapping a child be worse than some rapes?
What
is the underlying social harm of rape?
Even among feminists, you will see disagreement. What is special about rape that makes it
different from, for example, being slugged in the face?
After
Silence
– Nancy Raine
Raine is a poet and writer by trade.
She was subjected to a violent stranger rape in her home that lasted for
a number of hours. Her experience may
not be unique, but she has the unique skill to put her experiences and feelings
into words.
Is
the social harm of rape “objectification of the body”? Rape caused her to lose faith in a just
world.
This case, according to Dressler, represents the most traditional case
of rape. We’ll go from here and see how
there has been movement over time.
What
are the facts of the case? The victim was in a
relationship that doesn’t sound entirely consensual, despite what the
court says. It also had elements of
violence. They had this relationship for
about six months. The victim left about
a month before the alleged rape and moved in with her mother. Then a bunch of stuff happens.
Why
is it that the stuff that happened after the rape relevant and admitted as
evidence? At this time, acquaintance
rape was not as recognized.
In
·
Vaginal intercourse
·
With force
·
Against the victim’s will
·
Without the victim’s consent
Here
are some issues to keep in mind:
·
Keep in mind the potential distinction between force
and the threat of force. In some statutes,
force is required, while in others, only the threat of force is
required.
·
Was the threat actual or constructive? Can there be a threat without words being
uttered?
·
Keep in mind also the issue of threat versus fear.
·
Did the woman resist the man’s actions?
·
If there was resistance, was it physical or verbal
or both?
·
What if the woman doesn’t say no, but also doesn’t
say yes? Is it only rape if the woman
says “no”?
·
Should it be rape unless there is actual
consent? Does silence equal rape?
Did
Cottie Brown consent to the sexual intercourse that
took place? The appellate court said no. This was sex against her will.
Why
was this not rape based on the facts of this case? The
This
court says that there may be non-consensual sex that is not rape. Most statutes in the 1980s required force,
and the offense could thus be characterized as forcible rape.
Was
the court right in saying that there was insufficient evidence to show force or
the threat of force? What facts might the prosecutor
point to that would prove that the defendant forced the victim to have sex?
How
do we time-frame the threat as it relates to the sex act? What in the case makes the time-framing a big
issue? The court narrows the time frame
to June 15. If they really mean this,
they must be suggesting that anything said on June 14 doesn’t count.
Traditionally,
it was very hard to convict a man of rape.
If
there’s no threat, is there no rape? Is
taking off clothes enough to constitute force?
Doesn’t that make a whole lot more sex into rape?
We
will see later statutes that are interpreted to broaden the definition of “force”.
Alston gets basically overruled
under the table.
Social
science
Blaming
the victim – we know the victims get blamed frequently for their own rape. However, this is not exclusively a phenomenon
related to rape. It’s part of the desire
that all humans have to believe that the world is just. We all want to believe that it can’t happen
to us.
A
study showed that women don’t think there should be different punishment for
rape depending on the victim, whereas men gave a less serious punishment for
raping the person they see as of inferior character.