NCJ Number
98494
Journal
Journal of Criminal Law and Criminology Volume: 74 Issue: 4 Dated: (Winter 1983) Pages: 1518-1555
Date Published
1983
Length
38 pages
Annotation
This comment reviews the common law origins of the definition of rape and consent; surveys the reform statutes which have attempted to formulate a new definition of the crime, and analyzes Illinois' new rape statute, which defines rape solely in terms of the force used and creates an affirmative defense of consent.
Abstract
A review of rape as defined in common law concludes that rape is viewed in terms of the victim's lack of consent, such that the common law does not characterize the criminality of rape, i.e., the force or coercion used by the defendant. The section discussing consent and rape reform laws opens with an analysis of the American Law Institute's 1962 definition of rape in its Model Penal< Code. The resistance standard is then examined as manifested in the rape laws of New York and Washington State, followed by a review of the Michigan 1974 Criminal Sexual Conduct Act, which eliminates nonconsent as an element of rape by defining rape as sexual penetration where 'force or coercion is used to accomplish the sexual penetration.' The Wisconsin sexual assault statute, enacted in 1975, is discussed as one which retains lack of consent as an element of rape but redefining it as 'words or overt actions by a person who is competent to give informed consent indicating a freely given agreement to have sexual intercourse or sexual contact.' The concluding section recommends that rape laws be reformed to incorporate the statutory affirmative consent defense. In such a statute, the basic definition of the crime would be based on the Michigan model, which defines rape as sexual penetration by force or coercion; however, instead of leaving the consent issue open as does the Michigan statute, the Wisconsin definition of consent would be added. The 1983 Illinois Criminal Sexual Assault Act is discussed as an example of such a statute. The substance of the legislative debate on the bill is reviewed. A total of 209 footnotes are provided.