Criminal Law Class Notes 10/20/03


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 United States, we don’t punish people for being less than perfectly virtuous.


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?

Commonwealth v. Berkowitz


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 Pennsylvania statute requires sex (1) by forcible compulsion or (2) by threat of forcible compulsion or (3) with someone who is unconscious or (4) with someone who is mentally deranged.


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 Pennsylvania statute so that the force employed may be of many different types.


At common law, the kind of force we are talking about is limited to physical force.  Rhodes enlarges the definition of force to include other types of 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.


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