Idaho state statutes on rape and sexual assault

Idaho State and Statute on Rape

Common law is a foundational aspect of the development of the laws of the U.S. And has had a significant undercurrent of acceptance in many areas, particularly low population states where the vestiges of the practice of common law have been strong and essential to the development of criminal statutes, such as rape statutes. Common law is based upon regional considerations and is largely determined by the development of precedence in the historical legal system, a system of place, meaning that individual states and/or other municipalities have the right to create and enforce laws based on the presiding public opinion on subjects under jurisdiction of law.

English common law was more diffuse in its historical origins and in its application than was the civil law. Rome for three and a half centuries (a.D. 43-407) ruled England, but that occupation left few legal marks. More important was the later migration by, among others, the Angles and the Saxons from the European continent. They laid down a body of law based largely on custom, practice, and folkways, although it was partly codified. (Hall, 1989, p. 10)

Current law in Idaho is reflective of considerable change, especially with regard to rape statues. Current law in Idaho, enacted in 2002 (American Prosecutors Research Institute State Rape Statutes p. 8) designates that rape is defined by the following:

TITLE 18

CRIMES and PUNISHMENTS

CHAPTER 61

RAPE

18-6101. RAPE DEFINED. Rape is defined as the penetration, however slight, of the oral, anal or vaginal opening with the perpetrator's penis accomplished with a female under any one (1) of the following circumstances:

1. Where the female is under the age of eighteen (18) years.

2. Where she is incapable, through any unsoundness of mind, due to any cause including, but not limited to, mental illness, mental deficiency or developmental disability, whether temporary or permanent, of giving legal consent.

3. Where she resists but her resistance is overcome by force or violence.

4. Where she is prevented from resistance by the infliction, attempted infliction, or threatened infliction of bodily harm, accompanied by apparent power of execution; or is unable to resist due to any intoxicating, narcotic, or anaesthetic substance.

5. Where she is at the time unconscious of the nature of the act. As used in this section, "unconscious of the nature of the act" means incapable of resisting because the victim meets one (1) of the following conditions:

a) Was unconscious or asleep;

b) Was not aware, knowing, perceiving, or cognizant that the act occurred.

6. Where she submits under the belief that the person committing the act is her husband, and the belief is induced by artifice, pretense or concealment practiced by the accused, with intent to induce such belief.

7. Where she submits under the belief, instilled by the actor, that if she does not submit, the actor will cause physical harm to some person in the future; or cause damage to property; or engage in other conduct constituting a crime; or accuse any person of a crime or cause criminal charges to be instituted against her; or expose a secret or publicize an asserted fact, whether true or false, tending to subject any person to hatred, contempt or ridicule.

There is additional amendment to this information in the form of definitions of proof as well as an interesting amendment with regard to the determination of rape, as it cannot simply be made by the proof of an act of penetration but that the individual who is raped must be outraged by the event:

TITLE 18

CRIMES and PUNISHMENTS

CHAPTER 61

RAPE

18-6103. PENETRATION. The essential guilt of rape consists in the outrage to the person and feelings of the female. Any sexual penetration, however slight, is sufficient to complete the crime.

Additionally, the statute defined male rape, in a similar fashion as the rape of a female and defines the sentencing guidelines as the same, as no less than one year but up to life in prison at the discretion of the judge. Lastly the statute defines that the previous sexual conduct of the prosecuting witness can not be entered as evidence in the case, unless the judge deems it relevant and/or is offered freely by the witness, or in the case that there are previous felony convictions, one would presume for sex crimes on the part of the prosecuting witness.

In summation the nature of the Idaho Rape statues would seem rather comprehensive if not slightly ambiguous on some details. Yet, this state of the statute has not always been the case, as rape statues have changed in Idaho through the development of trends such as minimum mandatory sentencing as well as defining characteristics such as in the case where the victim was victimized by their legal spouse, which up to 1989 was not considered rape, but could only be prosecuted as a domestic assault if injury was sustained by the women.

Another interesting alteration in the Idaho law that required changing was the preliminary statement a judge offered the jury as they went into deliberation of a rape case. To understand the nature of this change one must look to English common law proceedings.

Blackstone goes on to (mis)quote Hale's dictum that rape "is an accusation easy to make, hard to be proved, but harder to be defended by the party accused, though innocent." 44 This, the so-called cautionary instruction, read by judges to jurors in rape cases, crept into American law and has been widely criticized by feminists and others. One motive for a woman to lie, according to Pollock and Maitland, was to induce the accused man to wed her and thus to "marry upward." 45 the law came to reflect this male concern (one might say "fear"). Hale, who seems to have drawn controversy to himself, 46 is also responsible for another contentious feature of English law: the marital-rape exemption. 47 the crime of statutory rape was created in 1576 during the reign of Elizabeth. 48 Rape remained a common-law crime in England until 1976, when the British Parliament enacted some of the recommendations of a specially appointed advisory group. This group had been commissioned by the Home Secretary "to consider whether legislation should be drafted to amend or reverse" 49 the decision in Director of Public Prosecutions v. Morgan, 50 in which the House of Lords ruled that an honest or sincere belief that one's sexual partner is consenting to intercourse, even if unreasonable, provides a defense to a charge of rape. 51 the decision created a firestorm of controversy that led to the creation of the advisory panel. The resu (Burgess-Jackson, 1999, p. 18)

In the state of Idaho judges also offered the jury a precautionary statement that mimicked the age old Blackstone adage, almost to the letter.

Judges do not necessarily use Hale's words, which I just quoted, but the intent, and probably the effect, are the same. Here is the instruction given in Idaho until its prohibition by the state Supreme Court in 1978: "A charge such as that made against the defendant in this case is one, which, generally speaking, is easily made, but difficult to disprove even though the defendant is innocent. Therefore, I charge you the law requires that you examine the testimony of [the alleged victim] with caution." State v. Smoot, 99 Idaho855, 863, 590 P.2d 1001, 1009 (1978).

(Burgess-Jackson, 1999, p. 11)

Another interesting change that has occurred in Idaho, would actually be considered a backslide by some but is haled as a revolutionary enforcement tactic. The much publicized case of the prosecution of juveniles for fornication, which occurred in Gem county Idaho in 1996 is at the center of this much debated social action policy. The point of the action by the prosecutor was to find situations of statutory rape, where the assumed demographic of the child would be compromised in the long-term and then prosecute the offenders, including the consensual partner under the age of 18 and the father who was over the age of consent and therefore could be charged with statutory rape and fornication. The prosecutor in fact sought out not only individuals who had broken the fornication law, ending in a pregnancy but those who had done so and then applied for welfare to help support themselves and their future child with it.

The common-law provision in such cases is to pronounce any sexual intercourse with under-age girls as that exactly -- rape. And whatever ambiguities beset the law when deciding whether sexual congress took place, there aren't any when the girl is pregnant.