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Welcome to my Law blog specifically intended as an aid to law students. I will post comments and white papers, from time to time, and I am happy to carry on conversations with students who are in need of help in law school.


I am most conservative and appropriate in my approach so if you comment and/or have questions to ask, please do so with an equal degree of appropriateness.



I am a Professor of Law at Concord Law School, an Internet Law School located in Los Angeles, though I live, teach and otherwise work out of Lakewood, Colorado, resting up against the foothills just west of Denver.

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I have no set schedule of posting, but I hope you will check in from time to time.

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Friday, June 11, 2010

1 – Sex Crimes (Rape)

1 – Sex Crimes (Rape)

PLEASE NOTE THAT THE FOLLOWING IS TAKEN FROM SOME OF MY CLASS NOTES, SOME OF WHICH IS MY OWN PERSONAL WORK AND SOME OF WHICH BELONGS TO CONCORD LAW SCHOOL.  IT IS POSTED TO HELP MY IL STUDENTS IN PARTICULAR.  IT CANNOT BE DISSEMINATED WITHOUT EXPRESS, WRITTEN PERMISSION.

The basic sex crime is rape. At common law, rape is defined as “the carnal knowledge of a woman forcibly and against her will.” 4 W. Blackstone, Commentaries *210, quoted in Criminal Law, Fourth Edition, Wayne R. LaFave, p. 846. Here, there must then be a specific actus reas – carnal knowledge (meaning sexual intercourse) that is committed forcibly – against the will of the victim. The mens rea of the defendant was that of a “general intent.” What this appears to mean in this context, is that the defendant must have acted to commit sexual intercourse, voluntarily.

One issue worthy of discussion is that of mistake. In other words, what if the defendant committed sexual intercourse under the mistaken belief that the victim actually consented? In the case of People v. Mayberry, 15 Cal.3d 143, 542 P.2d 1337 (1975), the court said, “If a defendant entertains a reasonable and bona fide belief that a prosecutrix voluntarily consented to accompany him and to engage in sexual intercourse, it is apparent that he does not possess the wrongful. . .” In such case, there can be no conviction. The Mayberry test is objective – did the defendant possess a reasonable belief. This is essentially an objective negligence test.

A second, famous case is Director of Public Prosecutions v. Morgan, an English case. Here the standard is a subjective one – did the defendant in fact believe the victim consented. This is essentially a subjective recklessness test.

A few courts would apply a strict liability test which is that the defendant must perceive the absence of consent.

My suggestion is that you discuss the Mayberry test and the Morgan test in terms of common law rape on an essay. Then just choose one for your conclusion.

Force: Generally, any non-consensual force will be sufficient – whether actual force or by threat of force and even by deception.

Non-consent: Generally, the victim’s physical resistance is not required, but both physical resistance or verbal resistance will be evidence to show that there was non-consent. Verbal resistance before or during the act will give rise to a rebuttable presumption of non-consent, but some courts will go farther than that to say it is a conclusive presumption.

Incapacity: Generally, to have the capacity to consent, whether it is a matter of being unconscious or physically impaired or a matter of mentally impaired, negates the defense of consent.

Statutory Rape: State laws vary in this area. Some may set particular ages and some states will draw on the age differences of the parties. Regardless, one of the main issues here is whether a mistaken belief of the victim will be a defense. Some states view statutory rape as a strict liability crime. Others accept an objective, mistaken belief regarding age as a defense, others require a subjective mistaken belief. Still others combine approaches.

Professor Doug Holden
© 2010. Douglas S. Holden. All Rights Reserved.

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