Criminal
Law Class Notes
Estrich
again
A
couple of things to understand about the Estrich piece:
This
article was made into a book written for lay people. In the book version of this article, Estrich
told the story of the fact that she herself had been raped. Estrich is on TV pretty frequently. She was the chairman for the presidential
campaign for Michael Dukakis. She
teaches now at USC.
Estrich
distinguishes between “real” rape (the “easy” cases) and acquaintance or “date”
rape. She argues that the public’s
understanding of the two cases is rather different.
MacKinnon
almost says that all sex between men and women is coerced and therefore is
rape. Estrich rejects this. She doesn’t take the radical view, and she
doesn’t take the reactionary view either.
Shall
we reject the resistance requirement of common law rape? Shall we moderate that requirement? If there is a genuine resistance requirement
in the law, it is much easier to determine by law if a rape has occurred. If we remove the resistance requirement, it
will be a lot harder to tell whether rape has occurred.
Estrich
says that even some coerced intercourse may arguably not be criminalized.
Maximalist
– anything that is immoral should be criminal.
Minimalist
– not everything that is immoral should be criminal; only the worst acts should
be criminal.
Every
year, the Penal Code gets thicker. We
seem to be moving away from a minimalist approach. But no one would suggest that we’re
approaching a maximalist approach.
Dressler proposes that most people aren’t going to be upset by
this. We all sometimes do things that
are immoral.
In
this country, we do not treat morality and criminal law as exactly the
same. In certain theocratic countries,
it might be different. In the
So,
there is some behavior that men do that is wrongful and immoral but Estrich
would not propose that such behavior should be criminal.
So
when does proper conduct become wrongful conduct? Where does wrongful conduct reach criminal
conduct? Where do we pass the line from
a misdemeanor to a felony? Where do we
pass between degrees? All this stuff
will vary from state to state and is changing over time.
Estrich
thinks that the burden should be on the woman to say “no”, but once she does,
Estrich suggests that the act moves into the realm of rape.
T.S.
Eliot problem
Was
this rape?
Susan
Ager—The Incident
Was
this rape? She doesn’t call it rape in
her own mind.
I
hate talking about this.
Would
Ager call this rape now? Rape is a
felony. Do we believe that the man in
the Ager case should be prosecuted, convicted, and punished as a felon?
Dressler
used this as an exam question. These
facts probably play out all the time in college dorms. Berkowitz is prosecuted for it, but Dressler
suggests that he’s not the only one who ever did it.
The
What’s
the prosecutor’s theory? It’s not (3) or
(4). It looks like it’s (1). The state argues that since there is no
consent, any force constitutes forcible compulsion. The state argues that her lack of consent is
the only relevant fact. The law does not
require active resistance.
The
courts have interpreted the
At common
law, the kind of force we are talking about is limited to physical force.
Was
there physical force in this case sufficient to convict Berkowitz under the statute?
If “no”
plus penetration equals force, doesn’t that mean that non-consent equals rape?
Alston was the most traditional case we’ve looked at. The victim in that case certainly did not
consent, but there was also no force.
Is
there a difference between permission and consent?
The
victim’s own testimony weakened her case.
No
matter what the victim may have meant by “no”, there is the mens rea question
of what the defendant understood by her saying “no”.
The
cues that men and women give are very different. Men and women read cues very
differently. There is a lot of
miscommunication between men and women about cues being given. There is thus a very important legal
question: if a man reads a woman’s cues wrong, the man will be acting under a
misunderstanding. There may be a mens
rea mistake of fact issue. A reasonable
mistake of fact is normally a defense to a general intent crime. Rape is a general intent crime.
Is
there any evidence that should not have been allowed into the trial? What about the “rape shield”? Are there some questions that should be
barred to protect the general reputation of the victim? Should we bar evidence that casts a negative
light on the victim’s character?
The
Model Penal Code provides for a lesser offense related to rape called “gross
sexual imposition”. Might that apply in Berkowitz? The thing is that this offense requires a
threat rather than actual force.