Lora Como

Professor Binder
Advanced Criminal Law
Memo #1
Tuesday, October 5, 2004

Even though all women instinctively know when they have been

raped, forcibly or otherwise, the laws of rape have no such intuitions on

which to rely for certainty and clarity. State legislators have perennially

struggled over policy issues that come with the crime in all its attendant

forms, from forcible rape to acquaintance rape to the sex sting. A body of

law that once suffered from lack of nuance now has become more refined

and more enlightened. Consequently, state statutes vary in their emphases

and requirements. For example, New York implicitly requires the crime of

forcible rape be accompanied by a culpable mental state, while Michigan

foregoes any such requirement. The implications of these statutory choices

have led to different legal implications in each state, yet despite different

focal points for litigators, both states arrive at the same ideological

conclusion. It is the conduct of the defendant that must receive the judicial

scrutiny, and not that of the victim.

New York’s inclusion of a culpable mental state in the crime of forcible

rape has not led the courts to dissect the victim’s behavior in order to

establish the criminality of the defendant’s conduct. According to the

statute, lack of consent results from forcible compulsion. NY Penal Law §

130.05 2(a). Traditionally, the intent of the defendant was gleaned from

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the amount of resistance displayed by the victim in trying to dispel her

attacker. A true show of resistance affirmed both the presence of force and

a lack of consent. Therefore, the defendant’s intent to rape a woman

against her will could not be mistaken since the defendant could in no way

be misled by her lack of consent to the sexual intercourse. The

requirement that a woman resist in order to establish her lack of consent

drew the focus of the law to the behavior of the victim, rather than that of

the perpetrator, to determine whether a rape had in fact occurred, and

many rapes involving no force escaped prosecution. New York has since

discarded the resistance requirement, and consequently, the degree of

forcible compulsion required has been relaxed as well. The intent of the

defendant still remains an element of the crime, and this presents a special

problem for prosecutors. If a victim is no longer required to resist to her

utmost, it now becomes especially hard to establish the defendant’s

criminal intentions because, at least theoretically, a defendant may

genuinely mistake a submissive and fearful female for a consenting partner.

The essence of the crime now revolves around two states of mind, that of

the defendant and that of the victim, but the question is whose state of

mind is the controlling one? New York has answered that it is the state of

mind produced in the victim that determines whether the defendant

committed a crime.

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 Several cases trace this development in New York law. The first, from

1977, People v. Coleman, 369 N.E.2d 742, 42 N.Y.2d 500, presented a

question on the presence of force. In Coleman, a woman was raped in an

elevator in front of her four-year-old son by two men. The two defendants,

Coleman and Harvey, blocked the elevator when it arrived at her floor, and

told her that she was not getting off. One of the defendants placed her son

on his shoulders and he began to cry. They ascended to the tenth floor

where they blocked the elevator doors with the woman’s shopping cart and

demanded that she remove all of her clothing. They screamed at her until

she complied. Harvey then unzipped his pants and told her to perform

fellatio. She protested that she had never done it before, and he replied,

“you are going to do it now.” Three acts of sodomy ensued, but the victim

was finally able to escape from the elevator and run down the hallway.

With the assistance of a neighbor, she retrieved her son and her clothes

after the defendants had left. Since no actual physical force was used, the

focus turned to the presence of an express or implied threat that would

have placed the victim in fear of immediate death or serious physical injury

to herself or another. The court reviewed the sufficiency of the evidence on

the presence of an implied threat with the defense asserting that any threat

posed by the defendants did not involve that of immediate death or serious

physical injury. The victim testified that she feared for her life and that of

her son, and the court found a basis for the jury to find this testimony

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entirely credible. The difference, the court noted, was “not what the

defendants would have done, but rather what the victim, observing their

conduct, feared they would or might do if she did not comply with their

demands.” Id. Therefore, the presence of a threat was gauged by the state

of mind produced in the victim by the defendants’ conduct, not the

probability that those threats would be realized or visited upon the victim.

Threats are designed to instill fear, and the presence of fear in a victim’s

mind apparently affirms the presence of a threat not expressly voiced.

After Coleman, People v. Thompson, 72 N.Y.2d 410, 530 N.E.2d 839

revisited this issue of threat realization and its relationship to the intent of

the defendant, and the court followed the same line of reasoning as

Coleman.

As in Coleman, the question of the presence of force and the intent of

the defendant surfaced. The victim, a juvenile, was a jail inmate with the

defendant, an older prisoner who threatened the victim through the bars

between their cells. The defendant demanded oral sex, and if he did not

receive it he would ensure that the victim’s stay in jail was not pleasant.

The defense cried impossibility; there was no way those threats could have

been immediately realized and therefore, the defendant could not possibly

have used, or even intended to use forcible compulsion. The court

acknowledged that the impossibility of carrying out a threat could reflect a

lack of intent to do so, but it fell back on the language of Coleman. It held

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that the proper inquiry was “what the victim, observing the [defendant’s]

conduct, feared he would or might do . . . the proper focus is on the state of

mind produced in the victim,” Id. for it is there that lack of consent - the sin

qua non of the crime – is found. Apparently, once the inquiry is properly

focused the rest of the elements fall in line: if the defendant was afraid,

force must have been somehow present, and if force was present, then the

victim was obviously not consenting. One cannot mistake a lack of consent

when one has used force, and a fearful victim is a non-consenting victim.

However, this line of reasoning has become muddled and called somewhat

erroneous, as evident in another New York case raising the mistake of fact

defense. See 6 N.Y.Prac., Crim. Law § 7:4.

The decision in People v. Williams, 81 N.Y.2d 303, 614 N.E.2d 730,

attempted to sort out the question of intent, the presence of forcible

compulsion and its relationship to the victim’s state of mind. The

defendants struck up a conversation on the street with the victim and they

asked her to join them at a club. She declined, but the defendants

continued to walk with her until they reached their car. There they

surrounded her, and the complainant got in because she felt she had no

other choice. She repeatedly asked to be let out, but her requests were

ignored. When they arrived at their apartment, all three defendants forced

her to engage in intercourse and sodomy. At trial, the defendants claimed

that they mistakenly believed the woman had consented to all of the sexual

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encounters, thereby negating any culpable states of mind in accordance

with NY Penal Law § 15.20 (1)a. The court began its decision on this

argument by stating, “Though the statutes are silent on the subject, intent

is implicitly an element of these crimes (Penal Law § 15.15[2] ). The intent

required is the intent to perform the prohibited act--i.e., the intent to

forcibly compel another to engage in intercourse or sodomy.” Id. The jury

instruction given at the trial level whether the defendants acted with the

necessary intent was the issue on appeal, but the court dismissed any error

as harmless. The reason the error did not amount to a reversal was

because the jury found that the defendants had used forcible compulsion, a

finding which necessitates a finding that they knew they were acting

without the consent of the victim (or else forcible compulsion would be

unnecessary). The implication of this “makes it crucial for defense

attorneys in rape cases to understand the law on intent and to insist that

the jury be instructed that the crimes of first degree rape and sodomy

require the defendant to intend to use forcible compulsion to accomplish

the charged sexual act.” 6 N.Y. Prac. Crim. Law § 7:4. By contrast, the state

of Michigan has chartered a more serene and lucid course for itself in the

law of rape.

Michigan rape law foregoes any mens rea, and the battles over

statutory nuances revolve around determinations of force and coercion.

However, like New York, Michigan refrains from unnecessary scrutiny of the

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victim’s behavior to determine the criminality of the defendant’s conduct.

In Michigan, one commits first-degree criminal sexual misconduct if

personal injury is caused and force or coercion is used to accomplish sexual

penetration. Force or coercion includes, but is not limited to, the actual

application of physical force or violence, the issuance of a threat to use

force that the victim believes the actor has the present ability to execute,

threats of retaliation against the victim or another person and the victim

believes the actor can carry them out, overcoming the victim through

concealment or surprise, an actor of blood relation or affinity to the fourth

degree to the victim, an actor who in a position of authority over the victim

and that authority is used to coerce the victim to submit, and various other

classifications according to mental incapacity or physical helplessness.

MCLA § 750.520 The fact that the legislature left this category open-ended

has allowed the courts discretion in defining the parameters of force or

coercion that do not fit neatly into those already annunciated. The leading

Michigan case on what constitutes enough force to satisfy the statutory

definition of criminal sexual conduct in the first degree is People v. Carlson,

466 Mich. 130, 644 N.W.2d 704 however an examination of a case that

predates Carlson by twenty years is necessary.

The case of People v. Jansson, 116 Mich. App. 674, 323 N.W.2d 508

(1982) addressed whether force and non-consent are essentially separate

elements. The facts show that, under the guise of wanting to hire the

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complainant, the defendant raped her at his place of employment. During

the course of the encounter, the defendant told the complainant that he

was looking “for someone to fuck,” and complainant said that she did not

do that. Nevertheless, the defendant pulled her to the floor, removed her

clothing and had sexual intercourse with her. On appeal, the defense

relinquished that force was used during the encounter, but even so, the

defendant had no idea that the victim was still not consenting to the sexual

intercourse. She had never stated to him that she did not want to engage

in sex with him. The court rejected this argument as a clever rehashing of

the resistance requirement, stating “In our judgment, this is simply a

suggestion that we require proof that the victim resisted the actor, or at

least expressed an intent to resist.” Id. Michigan law requires no such

expression, and the defendant’s conviction was upheld.

By comparison, the decision in Carlson was one of line-drawing in

trying to determine how much force is enough to satisfy the statutory

demands. The case involved two sixteen-year-olds who were acquainted

with each other for almost two years. Two weeks before the incident, the

defendant and the complainant had engaged in consensual manual sexual

touching, but not penetration in the defendant’s car in a parking lot. Two

weeks later, the two were together again in the defendant’s car in a parking

lot, and the complainant allowed the defendant to digitally penetrate her.

The defendant asked her to have sex with him and she said no. He asked

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why and she replied because she did not want to. The defendant repeated

his request and met with another refusal, then asked if he could “just stick

it in once” and she again said no. The defendant again asked for sex

several more times until the complainant grew tired of answering him.

When she failed to answer, he climbed on top of her and engaged in sexual

intercourse. The complainant never attempted to resist or push him away.

After the supreme court established that the court below had erroneously

misinterpreted a prior decision, it narrowed the question to whether the

definition of force or coercion contained a requirement that it be enough to

overcome the victim, or whether a lesser degree was satisfactory. The

court held that it did not because that would require the inappropriate

introduction of an extra element into the statute. However, the court noted

that,

To be sure, the ‘force’ contemplated does not mean ‘force’ as a

matter of mere physics, i.e., the physical interaction that would be
inherent in an act of sexual penetration . . . Rather, the prohibited
"force" encompasses the use of force against a victim to either
induce the victim to submit to sexual penetration or to seize
control of the victim in a manner to facilitate the accomplishment
of sexual penetration without regard to the victim's wishes.

Id.

Therefore, it is enough to constitute force that the complainant said no and

the defendant disregarded it. However, in light of Jansson, the question of

how the court would have determined the presence of force if the

complainant never expressed any intention to resist arises. On the one

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hand, force can be evidenced by a disregard of the victim’s wishes, and on

the other, the victim is not required to express her non-consent. Here,

Michigan case law reasoning seems to run into the same problems of

circuitry as the New York case law.

The interdependence between force, consent and intent in rape law

statutes remains a delicate and thorny balancing act. As state legislatures

come to terms with modern reforms in crimes of sexual misconduct, the

puzzle of what to prove and how has not become more clear. New York still

operates under the old male fear of the vindictive woman leveling false,

indefensible accusations while Michigan struggles to stay devout to more

progressive statutes that do not call for proof of non-consent or mens rea.

Each state has taken admirable steps towards putting the defendant’s

conduct on trial, rather than that of the victim, and those are at least steps

in the right direction.

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