Forcible Rape and Statutory Rape - The Delicate Balance Between the Rights of Victim and Defendant

• NCJ Number: 78909
• Journal: JOHN MARSHALL JOURNAL OF PRACTICE AND PROCEDURE Volume: 11 Issue: 3 Dated: (Spring 1978) Pages: 481-509
• Author(s): P H Oretsky
• Date Published: 1978
• Length: 29 pages
• Publication Format: Article
• Language: English
• Country: United States of America

Annotation

Case law on forcible and statutory rape is examined to show trends developing from reform efforts to eliminate the prejudices and legal barriers which have the made the prosecution of sex offenders a particularly trying experience for the victims.

Abstract

Criticism of current rape law is directed primarily at the requirement that the complainant resist her assailant unless force or the threat of force sufficient to cause bodily injury was used to gain her submission, at the evidentiary rules that permit a defense attorney to question the moral character of the complainant in an effort to suggest her consent to the sexual act, and at the corroboration requirement that exists in a minority of jurisdictions and prevents the prosecution's case from reaching the fact-finder on the complainant's testimony alone. The corroboration requirement should be completely eliminated; it is sufficient that a defendant in a rape case is free to impeach his accuser's reputation for veracity, as is true in any criminal charge. The resistance standard, like the corroboration requirement, is based on suspicion of a woman's motives in accusing a man of rape. There should not be any presumption in a court of law that if a woman failed to resist, she consented to sexual intercourse; rather, each case should be tried on its own factual circumstances, allowing the fact-finder to decide whether the conduct of the complainant was consensual. It is an accepted principle of law that evidence of prior conforming habits of conduct is admissible to establish the likelihood of questioned conduct. This rule should not be abandoned in rape cases. The penalties attached to a rape conviction are too severe to deny a defendant so important an element of his defense. The rule of law generally followed in statutory rape cases is that the only two elements of the crime are penetration and that the complainant was under the age of consent. Such effective criminalization of all intercourse with underage persons should remain to help protect all immature persons from being sexually manipulated. A total of 118 notes are listed. (Author abstract modified)