Learning Outcomes
This article provides a focused review of Rape and Statutory Rape relevant to the Multistate Bar Exam (MBE). It details the essential elements, including actus reus and mens rea, for both common law and modern statutory approaches to rape, emphasizing issues of consent and force. It also clarifies the strict liability nature of statutory rape concerning the victim's age. After completing this article, you will be equipped to identify the elements of these crimes and analyze related defenses in typical MBE scenarios.
MBE Syllabus
For the MBE, your understanding of specific crimes against the person, such as Rape and Statutory Rape, is essential. You should be prepared to:
- Identify the elements of common law rape, including the requirements of unlawful sexual intercourse, lack of consent, and the use of force or threat of force.
- Recognize how modern statutes have altered common law rape, particularly regarding gender neutrality, definitions of consent, and resistance requirements.
- Define the elements of statutory rape, emphasizing the age of the victim and the typical strict liability standard concerning the defendant's knowledge of the victim's age.
- Analyze the applicability and limitations of defenses, specifically consent in rape cases and mistake of fact regarding age in statutory rape cases.
- Recall the traditional marital immunity rule and its general abolition or modification under modern law.
Test Your Knowledge
Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.
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At common law, the element of "force" in the crime of rape required proof that the intercourse was accomplished through:
- Only physical violence resulting in injury.
- Fraudulent inducement related to the nature of the act.
- Actual physical force or threats of great and immediate bodily harm.
- The victim's intoxication to the point of incapacity.
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Defendant is charged with statutory rape in a jurisdiction following the traditional strict liability approach regarding age. Defendant reasonably believed the victim was 18, but the victim was actually 15 (below the age of consent). Which statement is most accurate?
- Defendant has a valid defense if his mistake of fact was reasonable.
- Defendant has a valid defense only if the victim misrepresented her age.
- Defendant likely has no defense based on his mistake regarding the victim's age.
- Defendant is liable only if he was reckless regarding the victim's age.
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Modern rape statutes often differ from the common law definition by:
- Requiring proof of victim resistance.
- Focusing primarily on the defendant's motive.
- Applying only when the victim suffers serious physical injury.
- Being gender-neutral and emphasizing lack of consent over force.
Introduction
Rape and statutory rape represent significant areas within crimes against the person tested on the MBE. Understanding their distinct elements and the evolution from common law to modern statutes is essential. Common law rape focused on non-consensual sexual intercourse accomplished by force or threat against a female not the perpetrator's wife. Modern statutes typically broaden the scope, often making the crime gender-neutral and shifting the focus from force/resistance to the absence of legally valid consent. Statutory rape, conversely, criminalizes sexual intercourse with a person below a statutorily defined age of consent, irrespective of consent or the defendant's knowledge of the victim's age, generally applying a strict liability standard to the age element.
Rape (Common Law)
At common law, rape involved unlawful carnal knowledge of a woman, not the defendant's wife, without her consent and achieved through force or threat of force.
Elements
- Unlawful Sexual Intercourse: Any penetration, however slight, of the vagina by the penis was sufficient. Emission was not required.
- By a Man with a Woman Not His Wife: The common law included marital immunity, meaning a husband could not legally rape his wife. This immunity is now largely abolished.
- Without Effective Consent: The victim must not have consented. Consent obtained by force, threats of immediate serious bodily harm, or where the victim was incapable of consenting (e.g., unconscious, mentally incompetent) was ineffective.
- By Force or Threat of Force: The act had to be accomplished through actual physical force or threats of imminent death or serious bodily harm. Some resistance by the victim was traditionally required.
Key Term: Rape (Common Law) Unlawful sexual intercourse by a male with a female, not his wife, without her consent and by means of force or threat of force.
Modern Developments
Modern statutes have significantly modified the common law approach:
- Gender Neutrality: Most statutes now define rape in gender-neutral terms, potentially applying to any perpetrator or victim regardless of gender, and often encompassing various forms of sexual penetration (e.g., anal, oral).
- Focus on Lack of Consent: The key element is often the absence of consent, rather than the presence of force or resistance. Consent must typically be affirmative, knowing, and voluntary. Lack of consent may be established by factors including physical helplessness, mental incapacity, or specific types of fraud (e.g., fraud in the factum).
- Resistance Requirement Diminished/Eliminated: The requirement for victims to physically resist has been widely eliminated or significantly reduced, recognizing that resistance may not be possible or could increase danger.
- Marital Immunity Abolished: The common law marital immunity has been abolished or drastically curtailed in virtually all jurisdictions.
Key Term: Consent (in Rape Law) Affirmative, voluntary agreement to engage in a sexual act. Its absence, rather than the presence of force or resistance, is often the central element in modern rape statutes. Its validity can be negated by force, threats, incapacity, or certain types of fraud.
Statutory Rape
Statutory rape involves sexual intercourse with a person under a statutorily specified age (the "age of consent").
Elements (Statutory Rape)
- Sexual Intercourse: Defined similarly to rape, involving penetration.
- Victim Under Age of Consent: The victim must be below the legally defined age of consent, which varies by jurisdiction (commonly 16 or 18).
- Strict Liability Regarding Age: The most critical aspect for the MBE is that statutory rape is typically a strict liability crime concerning the victim's age. This means the defendant's knowledge or lack of knowledge regarding the victim's age is irrelevant. A reasonable mistake of fact about the victim's age is generally not a defense.
Key Term: Statutory Rape Sexual intercourse with a person under the statutory age of consent. Consent is legally irrelevant, and the defendant's mistake regarding the victim's age is typically not a defense due to strict liability.
Key Term: Strict Liability (Criminal Law Context) Liability imposed without requiring proof of mens rea (guilty mind) for one or more elements of the crime. For statutory rape, this typically applies to the element of the victim's age.
Defenses
- Consent: Consent by the victim is not a defense, as individuals below the age of consent are legally incapable of consenting to sexual intercourse.
- Mistake of Fact Regarding Age: Due to the strict liability nature of the offense regarding age, a defendant's reasonable belief that the victim was of the age of consent is generally not a defense.
Worked Example 1.1
David, age 22, met Chloe, age 15, online. Chloe told David she was 19 and showed him a fake ID confirming this age when they met in person. Believing her to be 19, David engaged in consensual sexual intercourse with Chloe. The age of consent in the jurisdiction is 17. David is charged with statutory rape. His defense is his reasonable mistake of fact based on Chloe's representations and the fake ID.
Is David likely to be found guilty?
Answer: Yes. Statutory rape is typically a strict liability offense regarding the victim's age. David's intent related to the act of intercourse, but his knowledge or mistake concerning Chloe's age is irrelevant. Even if his belief that she was 19 was reasonable, it does not negate liability under a strict liability standard for the age element.
Exam Warning
Do not confuse the defense of consent applicable to forcible rape with statutory rape. Consent is legally irrelevant in statutory rape cases because the victim is deemed incapable of consent due to age. Similarly, mistake of fact regarding age is generally not a defense to statutory rape, unlike mistake of fact defenses available for specific intent crimes or even general intent crimes (if the mistake is reasonable).
Revision Tip
Focus on the distinction between forcible rape (common law and modern) and statutory rape. For forcible rape, analyze consent and the means used (force, threat, incapacity). For statutory rape, identify the age of consent and remember the strict liability rule for the victim's age element – mistake is usually no defense.
Key Point Checklist
This article has covered the following key knowledge points:
- Common law rape required unlawful intercourse with a woman, not the wife, by force/threat, without consent.
- Modern rape statutes are often gender-neutral, focus on lack of consent, and reduce/eliminate resistance requirements.
- Marital immunity for rape is largely abolished.
- Statutory rape involves intercourse with a person below the age of consent.
- Consent is irrelevant in statutory rape.
- Statutory rape is typically a strict liability crime regarding the victim's age; mistake of fact about age is generally not a defense.
Key Terms and Concepts
- Rape (Common Law)
- Consent (in Rape Law)
- Statutory Rape
- Strict Liability (Criminal Law Context)
