Criminal Law Class Notes 10/14/03


“…[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)




When we study murder, manslaughter, and negligent homicide under the Model Penal Code, the actus reus is always the same.  Everything that distinguishes degrees of murder and types of criminal homicide lies in the mens rea.


On the other hand, almost all of what constitutes rape is the actus reus.


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.


State v. Alston

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 North Carolina, second degree rape involved:


·        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 State failed to offer enough evidence on the element of force.


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.


Back to Class Notes

[1] “One of the great Supreme Court justices we’ve ever had” – Dressler

[2] 46 Clev. St. L. Rev. 409