criminal law test 3 - Criminal Sexual conduct Common Law...

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Criminal Sexual conduct Common Law rape Two recognized forms o 1. Sodomy- consensual homosexual sexual conduct o 2. Rape- forcible heterosexual sexual conduct o Punishable by DEATH Definition of rape- the carnal knowledge by a man, with force and without consent of a woman who was not his wife Women have to resist or considered consent Utmost resistance standard- women had to use ALL power at their command to resist and if they did not then it was considered consent Reasonable resistance standard- (1950s) amount of resistance required will be determined by totality of the circumstances realized that the utmost resistance standard many not be the best idea The Four General Elements of Criminal Sexual Conduct 1. sexual penetration - however slight 2. the use of force or threat of force a. consider: i. age ii. size iii. mental condition iv. physical setting of assault v. position of authority of perp over victim b. force may not be spoken just implied 3. victim’s non-consent a. it is presumed that when 2 people have sex then they are both consenting until something come forward saying differently b. if consent if gained fraudulently then you DO NOT have to prove force, or if a person is minor, mentally deficient or insane 1
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4. intent to engage in sexual activity by force without victim’s consent (mens rea) Criminal sexual conduct first degree (up to 30 years) 1. sexual battery - sexual intercourse, cunnilingus, fellatio, anal intercourse, or any intrusion, however slight, of any part of a person’s body or of any object into the genital or anal openings of another person’s body, except when such intrusion is accomplished for medically recognized treatment or diagnostic purpose 2. aggravated force - physical force or violence of high and aggravating nature OR Victim submits because - there is also something else going on such as kidnapping or robbery OR The defendant causes the victim with her consent to - be mentally, physically incapacitated by controlled substances 3. victim’s non consent 4. mens rea Criminal sexual conduct second degree (up to 20 years) 1. sexual battery 2. aggravated coercion- threat/blackmail 3. victim’s non consent 4. mens rea Criminal sexual conduct third degree (up to 10 years) 1. sexual battery 2. force or coercion without aggravating circumstance or no force/coercion but defendant knew she was incapacitated (took advantage) 3. victim’s non consent 2
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4. men’s rea Marital rape exception Common law o not a crime for a man to rape wife o when a women marries she consents to sex at any time o if we allow accusations in marriages then we encourage wives to MAKE THINGS UP o believe that if we allow criminal law then marriage will not be reconciled Current law o can be convicted of rape o spouses have to be living apart o reported within 30 days o facts have to meet the elements of first or second degree rape o if living together still can be convicted – spousal sexual battery Statutory rape: Criminal sexual conduct with a minor (general)
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This note was uploaded on 02/07/2011 for the course CRIMINOLOG 314 taught by Professor Clement during the Fall '10 term at South Carolina.

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criminal law test 3 - Criminal Sexual conduct Common Law...

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