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Published by: elegantpride on May 28, 2010
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Lora ComoProfessor BinderAdvanced Criminal LawMemo #1 Tuesday, October 5, 2004Even though all women instinctively know when they have beenraped, forcibly or otherwise, the laws of rape have no such intuitions onwhich to rely for certainty and clarity. State legislators have perenniallystruggled over policy issues that come with the crime in all its attendantforms, 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 refinedand more enlightened. Consequently, state statutes vary in their emphasesand requirements. For example, New York implicitly requires the crime of forcible rape be accompanied by a culpable mental state, while Michiganforegoes any such requirement. The implications of these statutory choiceshave led to different legal implications in each state, yet despite differentfocal points for litigators, both states arrive at the same ideologicalconclusion. It is the conduct of the defendant that must receive the judicialscrutiny, and not that of the victim.New York’s inclusion of a culpable mental state in the crime of forciblerape has not led the courts to dissect the victim’s behavior in order toestablish the criminality of the defendant’s conduct. According to thestatute, lack of consent results from forcible compulsion. NY Penal Law §130.05 2(a). Traditionally, the intent of the defendant was gleaned from
the amount of resistance displayed by the victim in trying to dispel herattacker. A true show of resistance affirmed both the presence of force anda lack of consent. Therefore, the defendant’s intent to rape a womanagainst her will could not be mistaken since the defendant could in no waybe misled by her lack of consent to the sexual intercourse. Therequirement that a woman resist in order to establish her lack of consentdrew 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, andmany rapes involving no force escaped prosecution. New York has sincediscarded the resistance requirement, and consequently, the degree of forcible compulsion required has been relaxed as well. The intent of thedefendant still remains an element of the crime, and this presents a specialproblem for prosecutors. If a victim is no longer required to resist to herutmost, it now becomes especially hard to establish the defendant’scriminal intentions because, at least theoretically, a defendant maygenuinely 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 defendantcommitted a crime.
Several cases trace this development in New York law. The first, from1977, People v. Coleman, 369 N.E.2d 742, 42 N.Y.2d 500, presented aquestion on the presence of force. In Coleman, a woman was raped in anelevator 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, andtold her that she was not getting off. One of the defendants placed her sonon his shoulders and he began to cry. They ascended to the tenth floorwhere they blocked the elevator doors with the woman’s shopping cart anddemanded that she remove all of her clothing. They screamed at her untilshe complied. Harvey then unzipped his pants and told her to performfellatio. 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 victimwas finally able to escape from the elevator and run down the hallway.With the assistance of a neighbor, she retrieved her son and her clothesafter the defendants had left. Since no actual physical force was used, thefocus turned to the presence of an express or implied threat that wouldhave placed the victim in fear of immediate death or serious physical injuryto herself or another. The court reviewed the sufficiency of the evidence onthe presence of an implied threat with the defense asserting that any threatposed by the defendants did not involve that of immediate death or seriousphysical 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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