Concept
Common-Law Elements
Rape
Common-Law Elements
The definition stated in the Introduction sorts into three working parts, and seeing that sorting first shows where each later section of this chapter fits. The first part is the act, carnal knowledge, the older term for sexual intercourse. The second is the parties: the actor had to be a man, and the woman could not be his wife. The third is the woman's side of the transaction, the requirement that she did not effectively consent.1 The act and the parties are settled by asking who did what to whom, and they receive three short subsections below. The woman's side is the contested part of most rape trials, since the defendant usually admits the contact and says it was consensual.2 For that reason it is divided among the later sections on force and threats, nonconsent and resistance, incapacity, and fraud.
Elements one through four are the act and the parties, divided into smaller pieces. Elements five through seven are the woman's side and the means by which it was proved, and later sections take them up in that order. A shorter four-element version, common in textbooks, lists intercourse, a woman who is not the defendant's wife, physical force or the threat of force, and absence of consent.4 The three formulations differ only in how many pieces they make.
Elements five and six appear as separate items because many jurisdictions treat force and nonconsent as two requirements. A Massachusetts decision applying its rape statute reads "by force and against his will" as two elements, each of which must independently be satisfied.5 Where the two are cumulative rather than alternative, a prosecution can establish force beyond question and still fail on nonconsent, so both must be proved.6 Other courts and commentators treat force as only a way of showing that intercourse occurred against the woman's will, which makes it evidence of nonconsent rather than a free-standing element.7 The exam consequence is to check the governing statute's wording before deciding how many separate showings the prosecution owes.
The narrow drawing of the first four elements follows from the history sketched in the Introduction. Rape was treated both as violence against the woman and as a property crime against the husband or father who controlled her, so the definition excluded a man's own wife.8 For the same reason it centered on vaginal penetration, the one act that could result in pregnancy.9 Oral and anal penetration therefore fell outside rape and were usually punished as other crimes.10 Each of those limits is a point at which modern statutes depart from the common law, and the subsections below take them one at a time.
The next three subsections take the act and the parties in order: penetration, the requirement of a male actor and a female victim, and the marital exemption.
Penetration
The act element of common-law rape asks for penetration and nothing further. The traditional rule required only penetration of the female sex organ by the male sex organ, and ejaculation or emission was not required.12 Courts state the point in similar terms: sexual intercourse means penetration of the victim regardless of degree, and this element has produced very little disagreement.13 A slight penetration therefore completes the act, so the offense is complete the moment the male organ enters the female organ, whatever happens afterward.14 Students sometimes assume that a crime of this kind needs a finished sexual act, and on an exam asking whether the defendant ejaculated is the wrong question.
The reason the rule stops at penetration follows from what the offense punishes. The violation of the complainant occurs when the invasion occurs, and whether it continues to a climax adds nothing to what was done to her. A rule requiring emission would also add a second physical fact for the prosecution to prove, one the complainant may be unable to observe or describe. It would let a defendant who withdrew early, or who was interrupted, say that the act was never completed even though the invasion was identical. Penetration is different because the complainant can speak to it from her own experience, which is why it is treated as an ultimate fact that the victim or an expert witness may testify about.15
The same structure explains why the definition names one particular act. Historically, rape was treated as an offense against the fathers and husbands who controlled women's reproductive capacities, so the definition centered on vaginal penetration, the one act that could result in pregnancy.16 Oral and anal intercourse therefore fell outside rape and were usually punished as other crimes.17 The definition also names the instrument, so penetration by something other than the penis falls outside the traditional act.18 Most jurisdictions today still require some act of penetration for rape, even though many have widened which acts and which persons count, a development taken up near the end of this chapter.19
Sexual contact short of penetration is not rape, however forceful or plainly sexual it may be. Assaults that include no act of penetration are usually classified as sexual battery.20 The related charge for an assault committed with the purpose of raping the victim is assault with intent to commit rape, the offense of which the defendant in North Carolina v. Pearce was convicted.21 That charge describes an assault carried out with the additional criminal purpose of raping the victim.22
The act element settles what must happen, and the next subsection turns to who may commit it and against whom.
Male Actor, Female Victim
The parties to common-law rape are fixed by the words of the definition itself. Rape was a man's unlawful carnal knowledge of a woman who was not his wife, so the actor had to be male and the victim female.24 No separate rule about gender sits alongside the definition, because the limit is built into its grammar. Descriptions of the traditional offense say the same thing in other words: it recognized only men as perpetrators and only women as victims.25
The reason the parties are fixed this way lies in the act element taught in the previous subsection. Rape required penetration of the female sex organ by the male sex organ, which calls for one participant with each, so a definition built on that act leaves room for only one pairing of actor and victim. The history explains why the act was drawn so narrowly. Rape was treated as an offense against the fathers and husbands who controlled women's reproductive capacities, and sexual assaults that could not result in pregnancy troubled that patriarchal legal world less.26 The limit on the parties is therefore a consequence of how the act was defined, and that is why reform of the act carried reform of the parties with it.
The practical result is that three combinations fall outside the common-law offense: a woman who forces intercourse on a man, a man who assaults another man, and a woman who assaults another woman. Each fails the parties element however much force and nonconsent the facts show. Failing that element does not make the conduct lawful, since sexual acts the definition did not cover were usually punished as other crimes.27 Modern statutes have generally removed the gender limits, and a number of states have renamed the offense sexual assault and drawn it in gender-neutral terms. That development is taken up under the reform trends later in this chapter, so a student answering under the common-law definition should treat the parties as part of the offense and test them first.
On an exam, a fact pattern with a female actor or a male victim takes common-law rape off the table at the first element, and the force and consent analysis never begins. The other limit on the parties concerns the relationship between the man and the woman, and the next subsection takes it up.
Marital Exemption
The second limit on the parties concerns the relationship between the man and the woman. Under the marital exemption, the woman could not be married to the man who committed the act, so intercourse by a husband with his wife did not constitute rape.29 The definition builds that limit in by describing the victim as a woman who is not the actor's wife.30 The device that made the limit operate was a conclusive presumption, which is a rule of law that treats a fact as settled whatever evidence either side offers against it. Traditional doctrine presumed consent conclusively whenever a man had intercourse with his wife.31
Because the presumption could not be rebutted, the amount of force a husband used made no difference. A husband who forced intercourse on his wife could not be convicted of rape however violent he was.32 That result follows from how the rule is built. In an ordinary rape case the prosecution must show that the woman did not consent, and her refusal, her protests, and her injuries all go to that showing. When the law deems consent established by the marriage itself, none of that evidence has anything to attach to. Marital status is therefore part of the definition, so the husband does not need to raise or prove it as an affirmative defense. Where the parties element fails, no rape exists to be proved, and the analysis of force and consent never begins.
These justifications do not carry equal weight in the doctrine. Implied consent is the one the exemption expresses directly, because a conclusive presumption of consent is that justification written as a rule of law. The property and unity rationales supply the background that made the presumption seem natural. Rape was understood as a crime of violence against the woman and also as a property crime against the husband or father who controlled her, and a husband who uses what is his own wrongs no other owner.34 The privacy rationale is a policy argument for staying out of marriages, and it adds nothing to the elements. Since the premise was a continuing and irrevocable entitlement to intercourse, a husband's force could never make the act nonconsensual in law, and reform therefore concentrated on removing the presumption itself.
The modern trend is to abandon the exemption. Most states have removed it, and the others have substantially limited it.35 Where it survives in limited form, states commonly deny the husband its protection when the spouses are estranged or separated, with some tying the loss to living apart, some to the start of legal proceedings, and some to both together.36 In People v. Liberta, a husband who forcibly raped his wife while they were separated under a court order argued that an exemption covering only married men violated equal protection. New York's highest court found no rational basis for treating marital rape differently from nonmarital rape, rejected the claims that prosecutions would breed vindictive complaints, intrude on marital privacy, and impede reconciliation, and held the exemption unconstitutional, though the husband's conviction stood.37 Other courts now reject the argument that marriage is different, and many state statutes forbid one spouse or cohabitant from compelling the other to have intercourse by force or threat.38
Abolition on paper has not removed the idea behind the exemption. Courts and legislatures still commonly presume consent to sex within marriage or long-term domestic relationships,39 some states still make marital rape a lesser, separate offense, and some have extended immunity to unmarried cohabitants.40 The Model Penal Code text has not changed either, because like the common law it requires that the woman not be married to the actor. The marital limit also appears in statutory rape, since the California provision examined in one Supreme Court equal protection challenge defined unlawful intercourse as intercourse with a female not the wife of the perpetrator who was under eighteen.41
On an exam, the marital relationship is tested at the same threshold as the sex of the actor and of the victim, and failing any one of them ends common-law rape before force or consent is reached. A fact pattern that mentions a wedding ring or a long-term couple therefore calls for two checks: whether the actor was married to the woman, and whether the governing law still honors the exemption for spouses in that situation. Under the common law or the Model Penal Code, apply the exemption as written. Under a modern statute, expect the exemption to be gone, or to be lost when the spouses are separated or legal proceedings are pending.