Stephen Schulhofer's unwanted sex and rape law reform

¶ … Rape Case Law and Jurisprudence

Panichas[footnoteRef:2] discriminated between aggravated rape and lesser offenses in a review of Stephen Schulhofer's book Unwanted Sex: The Culture of Intimidation and the Failure of Law. When the use of violence or its threat is used to overcome a victim's lack of consent, immediately before the assault, and this is clearly demonstrated by the evidence presented in court, then aggravated rape has occurred. If, however, victim nonconsent is questionable and the immediate use or threat of force is absent or ambiguous, then a rape conviction will not survive appeal in most states. As Panichas notes, rape jurisprudence has historically relied on common law and appellate decisions when judging whether allegations of rape have any merit and three criteria are prominent: (1) actual/credible use or threat of force, (2) force must be physical, and (3) nonconsent in the absence of force is insufficient to support a rape conviction. Add to these criteria the additional judicial habits and statutory requirements noted by Dressler[footnoteRef:3] and victims historically had little chance of success in court. Some of these requirements and courtroom hurdles include immediate notification of criminal justice authorities following the rape, warning juries that victims could be lying, requiring corroborating evidence of the victim's claim, and allowing defense attorneys to attack victim credibility and past sexual conduct. [2: George E. Panichas, Rape, Autonomy, and Consent, 35 Law & Soc. Rev. 231, 237-238, sect. V (2001).] [3: Joshua Dressler, Where We Have Been, and Where We Might Be Going: Some Cautionary Reflections on Rape Law Reform, The Sixty-Eighth Cleveland-Marshall Fund Lecture, 46 Clev. St. L. Rev. 409, 7-10 (1998). ]

I. State v. Alston

Both authors discuss the North Carolina Supreme Court ruling in State v. Alston[footnoteRef:4] to make their point. This case involved the victim alleging rape immediately after a sexual encounter with the defendant. A consensual relationship had existed for six months prior to the victim leaving to live with her mother, but the relationship had gradually become violent. A month after the victim moved out, she was confronted by the defendant at her school and forcibly removed from the premises. After walking together and talking, the victim informed the defendant that the relationship was over and the victim in turn claimed that she owed him one last sexual encounter. The two walked together to the house of a friend of the defendant, as they had done in the past, where the sexual encounter took place. The trial court convicted the defendant of kidnapping and rape, a conviction upheld by a state appeals court, but the state supreme court reversed both convictions. [4: 310 N.C. 399, 312 S.E.2d 470 (Sup. Ct. 1984); Panichas, supra note 1, at 239-240; Dressler, supra note 2, at 9-10.]

In Alston,[footnoteRef:5] the N.C. Supreme Court agreed that the victim was forcibly removed from the school premises against her will and threatened with physical harm, but the demand for sex was too far removed from this use of force for it to support a conviction of kidnapping with intent to commit a felony. After the defendant demanded one final sexual encounter the victim had at least two opportunities to flee: (1) while walking behind the defendant to the friend's house and (2) when the victim was left alone in the front of the house while the defendant and his friend were talking in the back of the house. For these reasons, the court overturned the conviction of kidnapping. The court then considered the rape conviction and noted that under North Carolina law, rape victims are not required to resist their assailants to obtain a conviction for this crime; however, evidence of both force and a lack of consent must be credibly presented during the trial. Since the use of force occurred much earlier than the demand for sex, the court concluded that force was not evident when the sexual encounter occurred. For this reason, the court also overturned the rape conviction.[footnoteRef:6] [5: 310 N.C. 399, 312 S.E.2d 470, 475 (Sup. Ct. 1984).] [6: Id. At 476.]

As noted by Panichas, rape is a criminal act of violence[footnoteRef:7] and therefore force and victim nonconsent are required before a conviction can be made. The prosecutors for the victim in Alston could have charged the defendant for a lesser crime, such as indecent assault, but they chose not to. In the absence of both force and nonconsent, the North Carolina Supreme Court had no other choice than to overturn the convictions given the rape laws in effect at the time. The average intelligent person would understand that the victim in Alston had become conditioned to the constant threat and use of violence by the defendant during the preceding six months of their relationship. Rape statutes and jurisprudence in 1984, however, could not base a rape conviction on a history of oppression that may have contributed to the victim's seeming complacency during the sexual assault. This would be equivalent to what Roberts called ". . . The latent threat of violence."[footnoteRef:8] [7: Panichas, supra note 1, at 241.] [8: Dorothy E. Roberts, Rape, Violence, and Women's Autonomy, 69 Chi.-Kent L. Rev. 359, 375 (1993).]

II. People v. Evans

A similar conclusion was reached by the New York State Supreme Court when it considered evidence used to obtain rape, sodomy, and unlawful imprisonment convictions against the defendant in People v. Evans.[footnoteRef:9] The victim, according to the court, had been seduced through fraudulent means into having sex with the defendant; however, under New York law the use of "… allurement, enticement, or persuasion, to overcome initial unwillingness or resistance" was not illegal.[footnoteRef:10] Although the defendant had made statements that could be construed as a threat and probably were by the victim, the court concluded that the intentions of the defendant were controlling and his intentions could not be determined conclusively in this case.[footnoteRef:11] In the absence of any other evidence for the use or threat of force immediately preceding the sexual encounter, such as bruises, scratches, and torn clothing,[footnoteRef:12] the court concluded that under current law the rape conviction could not be upheld. [9: 85 Misc.2d 1088, 379 N.Y.S.2d 912 (Sup. Ct. 1975).] [10: Id. At 915.] [11: Id. At 921.] [12: Id. At 917.]

An interesting aspect of the court's decision in Evans is the disgust the justices felt towards the defendant, expressing what seemed to be some measure of glee that the defendant was not successful in eluding all convictions the trial court administered. The defendant was convicted of criminal trespass in the second degree and escaping from a felony arrest in the second degree.[footnoteRef:13] The court's opinion of the fraudulent behavior exhibited by the defendant suggested the judges would have been happy to find some way to uphold the convictions under New York statutes, but given their understanding of the law and rape jurisprudence they were prevented them from upholding the convictions. Although the use of fraudulent means to coerce someone into sexual intercourse was criminalized by some states in recent years,[footnoteRef:14] in 1974 that was not the case. The New York judges therefore correctly applied the laws in effect at the time. [13: Id. At 922.] [14: Patricia J. Falk, Not Logic, but Experience: Drawing on Lessons from the Real World in Thinking about the Riddle of Rape-by-Fraud, 123 Yale L.J. 353, 367-368 (2013).]

IV. State v. Thompson

One of the more troubling rape cases reviewed here is that of State v. Thompson.[footnoteRef:20] A female high school student was allegedly threatened by an instructor at the school by promising to prevent her from graduating if she did not have sex with him. This occurred twice and the student waited until she graduated before reporting the incident to the authorities. The defendant filed a motion to dismiss based on the State's failure to meet the statutory requirements of without consent for the charge of sexual intercourse without consent.[footnoteRef:21] The District Court granted the motion, a decision upheld by the Montana Supreme Court due to the lack of probable cause under Montana's criminal code. Under MCA § 45-5-501 without consent can only be affirmed if imminent death, bodily injury, or kidnapping was threatened or implied. In other words, threatening to prevent a student's graduation is not sufficient under this statute to bring criminal rape charges. [20: State v. Thompson. No. 89-533, 792 P.2d 1103, 1104 (Mont. 1990).] [21: Id. At 1105.]

Notably, the Montana Supreme Court found the alleged actions by the defendant to be very disturbing and would have rewritten the statutes if they could.[footnoteRef:22] They did cite a California Supreme Court case where the definition of force was expanded to include any action by the assailant that undermines the will of the victim to resist.[footnoteRef:23] This would obvious include the threat of preventing the student from graduating, but the Montana court applied a narrow interpretation of the statute. As Faulk discussed,[footnoteRef:24] a number of legal scholars believe any threats, inducements, or fraudulent statements that violate a victim's sexual autonomy should be considered force under the law. This would include a threat against the victim's economic security, which would include the threat the defendant in Thompson is alleged to have made. For these reasons, the Montana courts got it wrong and should have expanded the definition of force in this case, especially given the age of the victim. [22: Id. At 1107.] [23: Id. At 1106.] [24: Patricia J. Falk, Not Logic, but Experience: Drawing on Lessons from the Real World in Thinking about the Riddle of Rape-by-Fraud, 123 Yale L.J. 353, 367-368 (2013).]

V. Jones v. State

The Indiana Supreme Court also erred when it reversed a rape conviction in Jones v. State, because according to their reading of the trial transcripts, no evidence of force was presented during the bench trial.[footnoteRef:25] Based on victim testimony the defendant entered her room one night and asked her to have sex with her three times, but she made excuses for the first two requests and gave in after the third. Although the victim claimed that she felt afraid of how the other occupants of the house would react, primarily the defendant's wife and victim's foster mother, the Supreme Court did not consider this sufficient to support the force requirement for a rape conviction. The victim was 26-years of age and therefore not a minor, nor did she struggle against the defendant after he began to molest her. [25: Jones v. State. No. 49S02-9204-CR-235, 589 N.E.2d 241, 242-243 (Ind. 1992).]

This case can best be understood by Dressler's discussion of the criminal consequences of the phrase no means no.[footnoteRef:26] According to his analysis, a perpetrator of nonconsensual intercourse following a no is guilty of violating the victim's sexual autonomy and should face criminal charges for his or her act. The criminal charge, according to Dressler should not rise to the level of forcible rape, but result in some lesser charge nonetheless. In Jones, the victim clearly said no twice and did not consent after the third request; therefore, nonconsent was established in this case. The absence of force, as Dressler discussed, should not be enough to dismiss allegations of nonconsensual sex. For this reason, the Indiana Supreme Court erred by reversing the rape conviction in Jones, not because force could not be shown, but because the case should have been remanded to a lower court for a lesser charge of nonconsensual rape or sexual assault. [26: Dressler, supra note 2, at 426.]