State v. Alston
310 N.C. 399, 312 S.E.2d 470.
Dressler, pp. 372-376
Facts: The defendant and victim were in a relationship but had more or less broken up. After a lot of rigmarole including some threats, the defendant and victim had sex at the defendant’s friend’s house. Afterwards, the victim made a complaint to the police. There is also evidence that their relationship at least partially resumed later. The defendant was convicted of second degree rape. He appealed on the basis that there was not sufficient evidence to send the case to a jury. He argues that there was insufficient evidence to establish the elements of force and of the act being against the victim’s will that are necessary to establish the prima facie case for rape.
Issue: Was sufficient evidence presented at trial of the element of force?
Rule: If an act of sexual intercourse is by both force and against the victim’s will, it constitutes rape even if the victim gave consent to the defendant for previous acts of sexual intercourse.
Analysis: The court finds there is sufficient evidence that the sex was against the victim’s will, but it finds insufficient evidence that the sex was forced. The court finds that there were acts of force and threats of force, but the court considers them unrelated to the act of sexual intercourse. The court seems to suggest that it is necessary for the victim to resist the act of sexual intercourse in order for it to be rape.
Conclusion: I think the court overturned the second degree rape conviction.
Notes and Questions
1. I think the judgment
of whether an “inference of the purpose of the threat” can be formed should
have been left up to the jury. Then
again, because of the higher standard of proof in criminal cases, it may be
something that shouldn’t reach the jury without a certain threshold of
As to the second point, we generally do not punish people for their character, so we certainly shouldn’t punish them for their physical characteristics.
2. Here goes Estrich again. She is definitely a difference feminist as opposed to an equality feminist. She says that women shouldn’t be held to a “male” standard. On the other hand, Berger seems to be more of an equality feminist, and her interest is in showing that men and women are equally capable of defending themselves.
3. If you’re incapable of responding to some action, any action is forcible.
4. Coughlin makes some interesting points. She posits that when you look at history, rape was originally a defense to fornication/adultery. Having sex against one’s will in effect took away the mens rea of adultery. It seems to me that it is a step forward that we do not punish men and women for having sex outside of marriage.
5. Here’s a note about blaming the victim. I think the essential point is that just because someone wants to have sex does not mean they want to be raped, and these two things are very different not only emotionally but physiologically. I do think there is an element of imprudence on the part of some victims, but that neither mitigates the fault of the perpetrator nor shifts substantive blame to the victim. However, from an economic standpoint, sometimes the victim is the “cheapest cost avoider”. If, for better or worse, women who don’t walk alone at night or who are conservatively dressed are less likely to be raped, and rape is bad, then it would seem to lead to the conclusion that we want to encourage women to dress conservatively and not walk alone at night. That doesn’t mean we think women shouldn’t have the right to dress how they want and go where they want when they want with who they want, but it just reflects the reality of the situation and makes the best of it while we work through other means to change it.