1 Book Cover Here Copyright © 2010, Elsevier Inc. All rights Reserved Chapter 6 Offenses Against Persons— Sex Related Criminal Law Ninth Edition

2 Copyright © 2010, Elsevier Inc. All rights Reserved Rape Common Law Rape is the “act of having unlawful carnal knowledge by a man of a woman, forcibly and against her will.” Elements of Rape Unlawful Marital exemption: a married man could not rape his wife. Carnal knowledge By force or fear Without consent or against the will Utmost resistance standard: required that a woman expend the greatest effort of which she was capable to foil a rapist, otherwise the sexual contact was not without consent. Of a woman 6.2

3 Rape Under common law it was not rape to have sexual intercourse with a female child if she consented. Later statutes included sections that provided that females under 12 years of age were incapable of consent. Statutory rape: sexual intercourse with a female under the age of consent. In the United States, the age of consent was fixed by statute in practically all states. Copyright © 2010, Elsevier Inc. All rights Reserved 6.2

4 Rape Model Penal Code A man who has sexual intercourse with a female not his wife is guilty of rape if: He compels her to submit by force or by threat of imminent death, serious bodily injury, extreme pain or kidnapping, to be inflicted on anyone; or He has substantially impaired her power to appraise or control her conduct by administering or employing without her knowledge drugs, intoxicants or other means for the purpose of preventing resistance; or The female is unconscious; or The female is less than 10 years old. Copyright © 2010, Elsevier Inc. All rights Reserved 6.2

5 Rape State Statutes, Codes, and Cases People v. Liberta Declared the marital exemption rule unconstitutional. While some state courts have determined that the marital rape exemption is unconstitutional, the U.S. Supreme Court has not made such a determination. Copyright © 2010, Elsevier Inc. All rights Reserved 6.2

6 Rape Statutory Rape It makes no difference whether the act was accomplished against her will, or without her consent, or even with her consent. A defendant will not be permitted to argue that he or she thought the victim was of the age permitted by the statutes. Copyright © 2010, Elsevier Inc. All rights Reserved 6.2

7 Rape Rape Shield Laws Prohibits the introduction at trial of reputation or opinion evidence of a rape victim’s sexual history. The rule also prohibits introduction of sexual history evidence not in reputation or opinion form, subject to three exceptions: The first exception concerns evidence that a rape defendant has a constitutional right to have introduced. The second exception is for evidence of the victim’s behavior with persons other than the defendant that the defendant offers to show that he was not the source of semen or injury. The third exception is for the past sexual behavior of the victim with the defendant himself, which the defendant offers to show consent. Copyright © 2010, Elsevier Inc. All rights Reserved 6.2

8 Rape A/R Unlawful sexual intercourse, with force or threat of force, without consent M/R Intentional Statutory Rape A/R Unlawful sexual intercourse with a minor by someone over 18 M/R Strict liability (except in those states that allow for mistake of age defense in which case it would be knowing or reckless) Copyright © 2010, Elsevier Inc. All rights Reserved 6.2

9 Sodomy and Related Crimes Common Law Sodomy is the carnal copulation by human beings with each other against nature, or with a beast. Model Penal Code Defines the offense as deviate sexual intercourse by force or imposition. Deviate sexual intercourse: a general term that can encompass sodomy as well as fellatio and cunnilingus. Not criminal if both participants consent and each is of sufficient age and mental capacity to give consent and they conduct their relations in private and create no public nuisance. Copyright © 2010, Elsevier Inc. All rights Reserved 6.3

10 Sodomy and Related Crimes State Statutes, Codes, and Cases Bowers v. Hardwick The U.S. Supreme Court upheld the constitutionality of the Georgia sodomy law. Lawrence et al. v. Texas The majority held that the Texas statute violated the due process clause of the 14 th Amendment. By 2001, only 18 states still retained sodomy laws that criminalized same-sex consensual activity. Copyright © 2010, Elsevier Inc. All rights Reserved 6.3

11 Sodomy and Related Crimes Sodomy A/R Deviate sexual activity (defined as when the sexual organ of one person comes into contact with, or penetrates, the mouth or anus of another person); by force; or without consent M/R Intentional, knowing Copyright © 2010, Elsevier Inc. All rights Reserved 6.3

12 Sexual Abuse (Sexual Assault) Common Law Rape required penetration; therefore, anything short of penetration was generally dealt with under battery prosecutions. Model Penal Code Sexual contact is defined to include any touching of the sexual or other intimate parts of the person for the purpose of arousing or gratifying sexual desire. Copyright © 2010, Elsevier Inc. All rights Reserved 6.4

13 Sexual Abuse (Sexual Assault) Sexual Assault A/R Any touching; of the sexual or other intimate parts of a person; for the purpose of arousing or gratifying sexual desire; without consent; or toward a person of a particular age (defined by statute); or a person unable to give consent (i.e., unconscious or incompetent) M/R Intentional, knowing Copyright © 2010, Elsevier Inc. All rights Reserved 6.4

14 Sexual Abuse (Sexual Assault) Child Sex Abuse States provide special coverage for taking indecent liberties with children. Statutes criminalize touching of children for sexual gratification. Consent of the child is never a defense. Sex offender registration laws have been created in all states in response to sexual crimes against children. Copyright © 2010, Elsevier Inc. All rights Reserved 6.4

15 Lewdness (Indecent Exposure) Lewdness Open and public indecency The offense must have been committed in a public place and seen by persons lawfully in that place. The elements required to convict were: Intentionally Indecently and offensively exposing the sex organs In the presence of another In an offensive manner Copyright © 2010, Elsevier Inc. All rights Reserved 6.5

16 Lewdness (Indecent Exposure) Model Penal Code Indecent exposure A person commits a misdemeanor if, for the purpose of arousing or gratifying sexual desire of himself or of any person other than his spouse, he exposes his genitals under circumstances in which he knows his conduct is likely to cause affront or alarm. Copyright © 2010, Elsevier Inc. All rights Reserved 6.5

17 Lewdness (Indecent Exposure) State Statutes, Codes, and Cases Some statues reduce the mens rea to reckless in the actor’s belief whether others would be offended and employ an objective standard as to offensiveness. In general, exposure of breasts or buttocks are not considered genitals but may be specifically added to the definition in the statute. Copyright © 2010, Elsevier Inc. All rights Reserved 6.5

18 Lewdness (Indecent Exposure) Public Lewdness (Indecent Exposure) A/R Exposure of genitals; in a public place; for the purpose of sexual arousal; in a manner that is offensive M/R Reckless Copyright © 2010, Elsevier Inc. All rights Reserved 6.5

19 Other Sex-Related Offenses Against the Person Seduction The act of a man inducing a woman to commit unlawful sexual intercourse with him by means of enticement, persuasion, solicitations, promises, bribes, or other means without the employment of force, therefore, overcoming her reluctance and her scruples. Copyright © 2010, Elsevier Inc. All rights Reserved 6.6

20 Other Sex-Related Offenses Against the Person Importuning/Sexual Solicitation of a Minor In most states, there are statutes prohibiting solicitation of sexual activity with minors. Voyeurism Committing trespass or otherwise surreptitiously invading the privacy of another, to spy or eavesdrop on another, for the purpose of sexually arousing or gratifying oneself. Copyright © 2010, Elsevier Inc. All rights Reserved 6.6

21 Other Sex-Related Offenses Against the Person Sexual Misconduct In some states, sexual intercourse between a defendant under age 18 and a victim under age 16. Intercourse with a Person in Custody Provides a penalty for one who engages in intercourse with a person under his supervisory or disciplinary authority, and is designed to deter abuse of custodial authority. Copyright © 2010, Elsevier Inc. All rights Reserved 6.6

22 Other Sex-Related Offenses Against the Person Sex Offenses Involving HIV and AIDS Under this statute, the defendant does not have to have sexual intercourse; intimate sexual contact is defined as exposing the body of the victim to bodily fluids in a manner that could result in the transmission of HIV. Copyright © 2010, Elsevier Inc. All rights Reserved 6.6