Introduction

Rape: Common Law and MPC

Introduction

At common law, rape consisted of a man, who was not the woman's husband, unlawfully having carnal knowledge of her without her effective consent.¹ Carnal knowledge is the old term for sexual intercourse, so the definition names three things the prosecution must show: an act, a male actor who is not the woman's husband, and a lack of genuine consent on her side. An older and terser wording describes the offense as the carnal knowledge of a woman "forcibly and against her will." That wording breaks into an act (carnal knowledge), a means of imposition (forcibly), and the woman's state of mind about what was done to her (against her will).² The two wordings cover the same ground. "Without her effective consent" folds the means and the state of mind into a single question, whether she genuinely agreed. Authorities differ on whether force is a separate element or only the evidence by which nonconsent is shown.³ On either view, a student who meets one formulation on an exam is looking at the same offense the other describes.

Several features of the traditional offense look odd to a modern reader. It demands force, it directs attention to what the victim did by way of resistance, and it excludes a man's own wife. They make sense once you ask what the definition was built to do. Historically, rape was treated both as a crime of violence against the woman and as a property crime against the husband or father who controlled her, which explains why a wife could not accuse her husband and why the offense centered on the kind of intercourse that could produce pregnancy.⁴ Rape was also a felony punishable by death, with no degrees, and the severity of that consequence may have pushed courts and juries to demand strong proof.⁵ Proof was difficult in any event, because a defendant in a rape case typically admits the contact and claims consent, which puts the complainant's credibility at the center of the trial.⁶ Force and resistance gave a factfinder something visible to weigh in place of a bare dispute about what was in someone's mind, and that is the function they served in the traditional definition.⁷

This chapter takes the common-law definition apart piece by piece: the act and the parties, the ways in which consent fails through force, threats, incapacity, and fraud, and the debated question of what the defendant must have intended. It then turns to the Model Penal Code's codified offense in § 213.1(1) and its companion offense, and it ends with the direction of modern reform, which has altered, augmented, or eliminated almost every common-law element.⁸ Many states have renamed rape as sexual assault and drawn the offense in gender-neutral terms, yet the common-law elements remain the baseline from which those statutes depart. The first step is to separate the definition into its working parts, beginning with the act that must occur and the persons who could commit and suffer it.