September 25 Notes and Briefs

September 25 Notes and Briefs - September 25, 2008 Chapter...

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September 25, 2008 Chapter 8 Rape Common Law Definition of Sex Offences: Carnal knowledge (penetration however slight) of a woman (unmarried to each other, only women can be a V of rape, only men can be D), by force (in order to prove force, V had to show resistance, needed to be something that could be described or shown. Could be excused if D used deadly force or threat of deadly force) and against her will (without her consent). Statutory rape: rape of a child. Children cannot give their consent. Martial exemption: cannot rape if you are married. B. Forcible Rape 1. Force and Nonconsent State v. Alston Supreme Court of North Carolina, 1984 Law: Second degree rape involves vaginal intercourse with the victim both by force and against the victim’s will. Consent that is induced by fear of violence is void and is no legal consent. Actual physical force need not be shown in order to establish force sufficient to constitute an element of the crime of rape. Threats of bodily harm which reasonably induce fear thereof are sufficient. Facts: Defendant (D) and victim (V) had sexual relations for about 6 months. V testified that they had sex on copious occasions and she also testified that in many instances, she had sex because she did not want to make D angry. V moved out of D’s house in May. In June, D was waiting for V outside her school and he told V that she should go with him. V testified that she said no at first but the she went with D because she was afraid of him. D and V continued to walk with him. D asked if it was over, and she said yes. D and V walked to a friend’s house where they had sex. V filed the complaint the same day. Few days later, D showed up at V’s house where they again had oral sex. She liked it this time. Reasoning: 2 nd degree rape involves vaginal intercourse with the victim both by force and against the victim’s will. Force does not have to be physical, and force can be implied from threats of D of serious bodily injury. In the current case, such actual or implied force is missing. V testified that he had sex with D because she knew of his anger from her past experience. But such past experience of fear cannot establish the force element of rape. According to the ct. “We note that the absence of an explicit threat is not determinative in considering whether there was sufficient force in whatever form to overcome the will of the victim. It is enough if the totality of the circumstances gives rise to a reasonable inference that the unspoken purpose of the threat was to force the victim to submit to unwanted sexual intercourse.” In the current case, no such inference can be drawn from the facts provided. Therefore, no rape. Issue: Was D guilty of 2
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This note was uploaded on 10/20/2009 for the course CRIM LAW 107 taught by Professor Swedlow during the Fall '08 term at McMaster University.

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September 25 Notes and Briefs - September 25, 2008 Chapter...

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