NCJ Number
140013
Journal
Minnesota Law Review Volume: 75 Issue: 3 Dated: (February 1991) Pages: 599- 618
Date Published
1991
Length
20 pages
Annotation
This analysis of judicial decisions in acquaintance rape cases concludes that these cases are more difficult than other rape cases to prosecute successfully under current law because prosecutors and courts fail to apply the common-law doctrine of confidential relationship that prevails in other areas of the law.
Abstract
Current law allows defendants to use a preexisting relationship to give credibility to a defense of consent or reasonable, good faith belief of consent. However, the law acknowledges various connections between people and recognizes that under certain circumstances it is appropriate both to prevent a person from acting and to require a person to act. If courts applied the doctrine of confidential relationships to acquaintance rape, evidence of the relationship would impose upon the defendant a heightened duty of care to the victim. This heightened duty of care would change the mental element of the crime. It would also change the definition of consent to mean positive words or positive action indicating a freely given agreement to have sexual contact. Finally, it deters the defendant from introducing evidence of the prior relationship or prior conduct between the victim and the defendant as relevant to showing consent to sexual contact during the disputed incident. Instead, the prosecution may introduce evidence of the prior relationship and conduct to impose on the defendant a heightened duty to obtain consent. Footnotes