What is the definition of modern day rape?
The definition of the crime and what constitutes what rape is, is changing
What constitutes Common Law Rape?
Sexual intercourse by a male with a female not his wife without her consent.
Is rape a general intent or specific intent crime?
General Intent (must have a morally blame worthy state of mind)
What constitutes Force able Rape (aka Criminal Sexual Assault)?
Carnal knowledge (sexual intercourse) with a woman forceably and against her will. (Blackstone definition). (Must have lack of consent and force.)
What kind of force under the common law?
To kill or seriously injure her or threatened force to kill or seriously injure her - then the woman was not required to resist. If the man used more moderate force or no force at all, then the common law required that the woman resisted to the utmost and if a man still overcame that force, well then that was forceable rape.
What is meant by reasonable resist?
States are changing to have the resistance requirement not be as stringent including that verbal resistance can be sufficient.
MTS case (NJ case)
The amount of physical contact inherent to the act of intercourse meets the force requirement for forceable rape. In NJ, the force element has effectively dropped out of the forceable rape statute, even though the statute itself includes the word force. It drops out because every act of intercourse meets the force requirement in NJ. How do you prove forceable rape in NJ? It can't be the case that every act of intercourse is rape. You prove non-consent.
In Common Law Could a husband rape his wife?
Nope, not possible. Marital Immunity Rule.
When would a mens rea requirement arise in rape?
If the male claims that he believed that the woman was consenting, when in fact she was not. Mistake of fact - a reasonable mistake of fact as to her consent would be a defense.
Test tip: In acquaintance rape cases
- the mens rea is many times an issue.