Rape and the Modern Penal Code

[Faeelin]

This will be familiar to the American Lawyers, but I thought this was interesting enough that it's worth bringing up, because it shows how much American culture changed, and is a really stark insight into how crappy American culture once was. We've just started studying rape in Crim Law, and, wow.

One of the more interesting developments in American Criminal Law was that in the 1950s, the American Legal Institute tried to codify and update anachronisms in criminal common law, resulting in the Modern Penal Code, which is used, to one degree or another, by about 2/3 of the United States.

Ultimately, it was finally promulgated in 1962. And it offers some telling insights into the American mindset before the Sexual Revolution.

For instance, section 213.1, on rape, states that "A male who has sexual intercourse with a female who is not his wife is guilty of rape if..."

That's right. At the time, forcing a wife to have sex with you was not a crime.

Then there's Section 213.6, offering provisions generally applicable states that:

3) "It is a defense to prosecution of <seduction of girls under 21 if you are their guardian, or less than 16 and over 10> if she is "primiscuous in sexual relations with others."

4) "No prosecution may be instituted or maintained unless the alleged offense was brought to notice of public authority within 3 months of its occurrence."

That's right. I hope you recover from the fact you were raped quickly, or else this crime gets a statute of limitations.

5) No person shall be convicted of any felony under this Article upon uncorroborated testimony of the alleged victim. In any prosecution before a jury, it shall be instructed to evaluate the testimony of a victim with special care in view of the emotional involvement of the victim and of determining the truth with respect to  the alleged sexual activities carried out in private."

In other words, unless there were witnesses, a woman could not get somebody arrested for rape, although if she was robbed or assaulted, her testimony would suffice.

The result? In 1969, there was 1083 prosecutions for rape in New York.

There were 18 convictions.

(The year may be off; it was either 69 or 62, and I'm too lazy to look up the fact at the moment).


I should also note that most states kept a variety of statutes on the book, requiring that in addition to not consenting, the woman actively resisted the rape. Conbsider People v. Warren, an Illinois case from 1983. A woman was biking along a reservoir, when a defendant came up and struck up a conversation. When she attempted to leave, he placed his hand on her and said, "This will only take a minute. My girlfriend doesn't meet my needs." The defendant was 6'3'', weighing 185 lbs; the complainant was 5'2''. Because the victim didn't scream, fight back, or flee, the Court held she wasn't a victim of rape, although she testified at trial, "it was in the middle of the woods and I thought it would be bad for me" to scream.

The court found that "failure to resist when it was within her power to do so conveys the impression of consent regardless of her mental state, amounts to consent and removes from the act performed an essential element of the crime."

[ulmont]

One of the more interesting developments in American Criminal Law was that in the 1950s, the American Legal Institute tried to codify and update anachronisms in criminal common law, resulting in the Modern Penal Code, which is used, to one degree or another, by about 2/3 of the United States.

Model, not Modern.  But yeah, it's god-awful.

[DisturbedPervert]

This will only take a minute.

That line never works for me.

[Valmy]

"It is a defense to prosecution of <seduction of girls under 21 if you are their guardian, or less than 16 and over 10> if she is "primiscuous in sexual relations with others."

You have got to be fucking with me.

[DisturbedPervert]

She's was asking for it, Your Honor.

[Barrister]

Faeelin, you're in first year law, right?

Why the fuck are you studying this kind of touchy-feely comparitive law stuff in first year?  Thats the only year they seem to teach black letter law in most schools, this kind of analysis should come in second or third year.


And yeah - a lot of the same factors used to exist in Canadian law.  Our criminal law was codified in the 1890s I think, and yes rapes had to be corroborated, and a husband couldn't be convicted of raping his wife.

[Faeelin]

Faeelin, you're in first year law, right?

Why the fuck are you studying this kind of touchy-feely comparitive law stuff in first year?  Thats the only year they seem to teach black letter law in most schools, this kind of analysis should come in second or third year.

You didn't take criminal law as a 1L?

Does Canada have a province by province penal code, or is nationwide?

[Barrister]

Faeelin, you're in first year law, right?

Why the fuck are you studying this kind of touchy-feely comparitive law stuff in first year?  Thats the only year they seem to teach black letter law in most schools, this kind of analysis should come in second or third year.

You didn't take criminal law as a 1L?

Does Canada have a province by province penal code, or is nationwide?

Yes, first year.  But it focused much more on principles and case readings, not comparitive stuff (even with my prof being a raging feminist).  This historical analysis of rape seems more appropriate to a athird year "women and the law" course.

The Criminal Code is nationwide, but is prosecuted by the provinces (except in the territories).

[Fate]

In an era of no DNA tests these rules would seem reasonable.

In that 1983 case the girl didn't even say no. 

[Faeelin]

Yes, first year.  But it focused much more on principles and case readings, not comparitive stuff (even with my prof being a raging feminist).  This historical analysis of rape seems more appropriate to a athird year "women and the law" course.

For some reason, our crim law professor loves going over the origins of comon law, and how the MPC has changed American law. To an extent, this makes sense, since some of the country has stuck with the old Common Law Rules for things like Manslaughter. But to a large extent the class feels fairly silly and is absurd policy discussions, which will make up one third of our final. 

So it makes some sense, if you are having students who will practice nationwide in theoretically 50 different jurisdictions. In practice, most of us will end up staying in New York, but...

[ulmont]

Why the fuck are you studying this kind of touchy-feely comparitive law stuff in first year?  Thats the only year they seem to teach black letter law in most schools, this kind of analysis should come in second or third year.

In American law schools, you really can't help but be exposed to this aspect of comparative law in first year.  Criminal Law is taught as a 1L, generally using the Model Penal Code (since the MPC is at least logically laid out and since states vary so widely in their criminal laws), which means that everyone does a doubletake when they look at the 60s-era rape discussion.

[Berkut]

5) No person shall be convicted of any felony under this Article upon uncorroborated testimony of the alleged victim. In any prosecution before a jury, it shall be instructed to evaluate the testimony of a victim with special care in view of the emotional involvement of the victim and of determining the truth with respect to  the alleged sexual activities carried out in private."

In other words, unless there were witnesses, a woman could not get somebody arrested for rape, although if she was robbed or assaulted, her testimony would suffice.

How is this so terribly unreasonable?

Aren't they simply saying "Hey, sex is often an emotional activity, and jsut because some chick gets pissed off that her BF dumped her and decides to say he raped her, that cannot be enough evidence to convict him".

Certainly if she accused him of robbing her, that is NOT sufficient evidence - she would have to come up with more than jsut her word for a conviction. The law is simply spelling out that you aren't allowed to throw your ex in jail for a decade or so because you say so, and juries should understand that.

How is rape any different from any other crime, where there is a burden of *proof* - and how can someone uncorroborated word ever rise to that burden?

[Barrister]

Do you guys study much English caselaw (in particular 19th century stuff)?

My favourite cases from 1st year crim law was the "is it murder to kill someone in a lifeboat and eat them if you're starving" case.

[Barrister]

How is this so terribly unreasonable?

Aren't they simply saying "Hey, sex is often an emotional activity, and jsut because some chick gets pissed off that her BF dumped her and decides to say he raped her, that cannot be enough evidence to convict him".

Certainly if she accused him of robbing her, that is NOT sufficient evidence - she would have to come up with more than jsut her word for a conviction. The law is simply spelling out that you aren't allowed to throw your ex in jail for a decade or so because you say so, and juries should understand that.

How is rape any different from any other crime, where there is a burden of *proof* - and how can someone uncorroborated word ever rise to that burden?

It's unreasonable because no other crime had such a requirement.  No other crime *required* corroboration.

Now yes when you have the uncorroborated word of a witness to any crime it is certainly a factor to say that there is no corroboration, and yes that makes getting a conviction pretty hard.  But why as a policy should you say you can never get a conviction?

And there are special dynamics behind rape/sexual assault.  More than any other crime it happens behind closed doors where no one is watching.  Requiring corroboration would have more effect on rape than requiring it on other crimes.

[Berkut]

And there are special dynamics behind rape/sexual assault.  More than any other crime it happens behind closed doors where no one is watching.  Requiring corroboration would have more effect on rape than requiring it on other crimes.

But there are other special dynamics involved as well - no other crime involves such an emotional act between often emotionally involved people and what is almost always behind closed doors.

So that cuts both ways - and should not the law stipulate that in fact the *accused* should be given the benefit of the doubt, rather than the accuser?

There is no need to specify that in other crimes uncorroborated accounts are inadequate for conviction - it is simply assumed. When it comes to acts that happen, almost by definition, behind closed doors, then it is not unreasonable that additional restrictions on the ability to convict based simply on someones word be in place.

Are you arguing that you ought to be able to convict someone of a felony simply on the word of another interested party, under any circumstances?

I can understand your point - but I cannot imagine a situation where I would find it just to convict someone of a felony based ONLY on the word of someone who claims they saw it happened, when the person testifying is, by definition, not an unbiased or objective observer.

And yes, I do realize this will result in a travesty of justice, in many situations. Just not sure how to resolve it.