Concept
Force and Threats
Rape
Force and Threats
The earlier subsections fixed the act and the parties, so the remaining question is how the act was accomplished. The traditional definition of rape, the carnal knowledge of a woman "forcibly and against her will," divides into a specified act, a specified means of imposing it, and the woman's state of mind about it.1 Force and threats supply the means. In the ordinary case the common law required the defendant to resort to force or a threat of force above and beyond what penetration itself involves.2 The prosecution therefore had to prove intercourse by a man with a woman not his wife, accomplished by physical force or the threat of force and without her consent.3 The two means are taught separately below, physical force first and threats of bodily harm second, because each carries its own proof problems.
Both means rest on one premise about consent. A woman who is overpowered has not chosen the intercourse. A woman who submits because the man has put her in fear of serious harm has chosen only the lesser of two harms, so her submission is not consent in law. Force and threats therefore link what the defendant did to what the woman experienced: the means he used explain why she did not agree, and her lack of agreement is what separates rape from ordinary intercourse.4 Courts disagree about how to label that link. Some treat force as a separate element, so that consent can in theory coexist with violence and there is no crime without force however plainly the sex was unwanted. Others treat force as the way the prosecution shows the intercourse was against the woman's will.5 The second view has an advantage in cases where nothing beyond penetration was needed, because treating force as a true element forces a court to invent a fiction of constructive force to cover them.6 On either view the two ideas cannot be fully separated, since how much force the defendant used bears directly on whether the woman consented.7 Statutes word the relationship differently, and the governing text controls. Massachusetts, for example, treats force (physical, nonphysical constructive, or threats of bodily harm) and nonconsent at the time of penetration as two separate elements, each to be proved.8
The demand for force beyond penetration traces to suspicion of the accuser. Lord Chief Justice Matthew Hale remarked in the seventeenth century that rape is an accusation easily made and hard to defend against, even for the innocent, and that attitude likely accounts for both the narrow definition and the unusual evidentiary rules that followed.9 Force answers that concern by turning a private question, whether she agreed, into an observable one that others can check through bruises, torn clothing, a weapon, or a struggle that someone heard. Requiring more than the force inherent in penetration also screens out intercourse the woman later disowns, because penetration is present in every act of intercourse and so shows nothing about consent. The cost fell on the victim, since proof of force often shaded into proof of resistance, and a woman who submitted out of terror could find her case failing. Many jurisdictions have since weakened the requirement, accepting the minimal force needed to accomplish penetration,10 a development taken up under the reform trends later in this chapter.
Force and threats are the principal means of showing that consent was ineffective, and the common law recognized only a few alternatives, namely extreme fraud and the administration of drugs or intoxicants, which come later in this chapter.11 Under the traditional definition, a student who finds penetration over a refusal, with nothing more, has not yet found the means element, because the force inherent in the act does not count. The next subsection takes up actual physical force, and the one after it takes up threats.
Physical Force
Actual physical force is the more direct of the two means introduced above, and the common law gave it the simpler treatment. Intercourse accomplished by actual physical force was rape, and in those circumstances the law did not recognize any issue of consent.13 The reason lies in what consent is. Consent is a choice made by someone free to refuse, and a woman who has been pinned, held, or beaten into submission was never given that choice. The force explains why the intercourse happened at all, so the means the defendant used settles the consent question, and the prosecution has no separate fact about her state of mind left to establish.
The traditional gloss sets a floor on what counts as force. Force was generally understood as physical compulsion or violence, beyond that involved in the act of intercourse itself, that effectively subdued the woman, and it usually, though not always, left the victim physically injured.14 The ordinary case therefore required force or a threat of force above and beyond that inherent in the penetration.15 The floor follows from the structure of the offense. Penetration occurs in every act of intercourse, consensual or not, so if penetration alone satisfied the force element, the element would be met in every case and would distinguish nothing. Requiring something more gives the factfinder an observable fact to examine, such as a hold, a blow, or a restraint. The stranger attack is the familiar picture: in Williams v. Illinois, the attacker forced a young woman who was walking home from work into his car and raped her.16 Modern statutes that speak of physical force raise the same question, and readings divide between one under which any involuntary sexual touching counts as force and one that requires force beyond the penetration, used to overcome the lack of consent.17
Whether a statute makes force its own element or treats it as proof of nonconsent matters little when the force is actual and overpowering. A statute that lists force and nonconsent separately still finds both in the same evidence, because the hold on her wrists shows force beyond penetration and also shows that she did not agree. The two ideas cannot be fully separated in any event, since the nature and extent of the force bears directly on the consent question.18
The same floor that makes the stranger attack easy to prove leaves a gap on the other side of the line, and a frequently used illustration shows where it falls. A teenager named Adrienne sneaks out at night, walks three miles to Mike's house, and follows him inside alone. When he tells her that his parents are within earshot she does not call out, and her clothes come off in an isolated room. She neither resists nor says no, and she remains profoundly passive while he penetrates her. He never beats her or threatens her with a knife.19 Set this beside the pinned woman, where the penetration is the same and the only missing fact is physical compulsion by the defendant beyond the act itself. A definition that anchors nonconsent in the defendant's means then has nothing to point to: no violence that subdued her and no threat that made resistance futile. Statutes in most states still reflect these common-law requirements, and even where the recognized kinds of coercion have been broadened slightly, what Mike did to Adrienne would not qualify as force within them.20 That result describes how far the traditional definition reaches and carries no judgment about whether the definition was right. Its effect on passive or frozen victims is part of what later reform addressed, by easing resistance requirements and widening the kinds of imposition recognized as coercion.21
Where a particular jurisdiction stands depends on its statute. Some states still require force that overcomes resistance or threatens serious harm, and on that approach a defendant who used only the force normally involved in intercourse against a victim who offered no resistance may escape a rape conviction. Other states treat nonconsensual intercourse by itself as the offense, though probably of a lesser degree.22 Pennsylvania's rape statute shows how a reformed formulation loosens the standard: the victim need not resist, and the force needed is only enough to establish lack of consent and to induce submission without additional resistance, a measure that depends on the circumstances of the case.23
On an exam, the first question about means is whether the facts show physical compulsion beyond penetration. A held wrist, a blow, or a restrained victim satisfies the means element, and the consent analysis largely follows from it. A stem in which the victim goes silent and the defendant uses no violence makes force the weak link under the traditional definition, and the answer then turns on whether the governing statute is the traditional one or a reformed one. The other means, threats of bodily harm, comes next.
Threats of Bodily Harm
The threats of bodily harm branch of the rule is the second way the common law found that a woman's apparent agreement was no agreement at all, and it works differently from the physical compulsion just described. Intercourse accomplished by placing the victim in fear of great and immediate bodily harm was rape, and any consent obtained through such threats was ineffective.25 The reason lies in what a threat does to choice. A woman who submits because a man has said he will kill or maim her has chosen only between two harms that he put before her, and a choice made under that pressure belongs to him rather than to her. Physical force takes the decision away by overpowering the body, and a threat takes it away by overpowering the will, so the law reaches the same result for both: the intercourse occurred because the defendant imposed it.
The threat rule also settles a proof problem that would otherwise defeat it. The act remained rape even if the victim did not resist to the utmost, so long as the threats prevented resistance.26 Traditional law often proved nonconsent through the victim's resistance, a requirement taken up later in this chapter, and a woman who submitted to a man holding a weapon would have had no resistance to show. Demanding that she fight a man who has just promised to kill her would require her to risk the very harm he threatened, and the threat exists to make resistance look futile or dangerous. Courts therefore generally did not require proof that the defendant used actual physical force or that the victim resisted when he threatened her with serious harm, and often the defendant was armed and used the weapon to make the threat.27
The same sources set two limits on the rule. The victim's fear of serious harm had to be reasonable, and the threatened harm usually had to be death or serious bodily injury, to the victim or to a third person.28 Each limit has its own job. Reasonableness ties the victim's fear to what the defendant actually said or did, so that a fear resting on nothing he communicated cannot turn consensual intercourse into rape. The gravity requirement keeps this category confined to pressure comparable to physical force, which is why the common-law formula speaks of harm that is both great and immediate. Immediacy fits the same logic, because a threat of harm at some later time leaves room to escape or call for help, and submission under it is a less certain product of an overborne will. Without these limits, any unwelcome pressure that preceded intercourse could be called a threat, and the force requirement would lose its meaning.
In the prosecution of Rusk, the complainant testified that she went with him to his apartment and that he kept her car keys when she told him she wanted to go home.29 She testified further that she begged to leave, asked, "If I do what you want, will you let me go without killing me?", and submitted only after he put his hands on her throat and began lightly to choke her.30 If credited, that account shows fear of death produced by something the defendant did, which is the core of the threat rule. The intermediate appellate court nevertheless reversed his second-degree rape conviction, reasoning that force is an essential element, that the evidence had to show either resistance overcome by force or prevention of resistance by threats to her safety, and that it saw neither resistance nor fear sufficient to overcome an attempt to resist.31 Whatever one makes of that result, it shows what a prosecutor must be ready to prove when the threat is partly implied: that the fear was reasonable and traceable to the defendant's words and conduct, rather than to the complainant's general unease.
A threat need not be spoken in so many words, and it need not be aimed at the victim. In a standard teaching problem, Andrew unlawfully enters Sarah's house, points at her one-year-old baby, and uses words demanding that she submit as the price of not harming the child. Sarah submits without saying no or resisting, and she asks him to use a condom.32 Andrew has committed rape under the common law, because the context shows a threat of serious physical harm to a third person, and that implied threat suffices.33 His arguments that she did not resist and that the condom request showed agreement both fail. Even states that require physical resistance to physical force do not expect it from a victim facing a threat of serious injury to herself or another, and insisting on protection against disease is a reasonable precaution that says nothing about consent.34 Threats to harm a woman's child, husband, or boyfriend are the standard examples of the intimidation that supports the charge.35
Statutes track the common-law rule with variations in wording, and the governing text controls. Massachusetts requires force, which may be physical, nonphysical and constructive, or a threat of bodily harm that is either explicit or implicit, together with nonconsent at the time of penetration.36 Pennsylvania's rape statute reaches intercourse by a threat of forcible compulsion that would prevent resistance by a person of reasonable resolution, and it separately provides that the victim of a rape need not resist.37 The Pennsylvania text uses an objective test in place of the common-law formula, asking whether the threat would have overcome a person of reasonable resolution.
Step 2 is where the traditional rule draws its outer line. Threats of lesser or non-bodily consequences, such as loss of a job, loss of financial support, or exposure of a secret, did not make intercourse rape. In Mlinarich the court refused to define forcible compulsion to include intercourse induced by any threat, warning that such a definition would convict a man who takes in a destitute widow and threatens to withdraw support unless she submits, or a person who extorts sexual favors by threatening to discharge the victim or to disclose an adultery, and would give jurors almost unlimited discretion over which threats and promises turn intercourse into rape.38 The court held that rape as the legislature defined it requires actual physical compulsion or violence, or a threat of physical compulsion or violence sufficient to prevent resistance by a person of reasonable resolution.39 The line sits at bodily harm because the difference between a coercive threat and a hard bargain becomes difficult to administer once the pressure stops being physical, and a rule sweeping in every unwelcome inducement would make guilt depend on a jury's view of which pressures are acceptable. The Model Penal Code later addressed lesser threats in a separate, lower-graded offense, which is taken up under Gross Sexual Imposition.40
Some modern courts have held that unlawful threats involving no violence, such as blackmail, can support a rape charge.41
On an exam, a stem that describes a weapon, a spoken promise of death or injury, or an implied threat to a child or other third person points to the threat means, and the victim's failure to fight is no answer to it. A stem in which the pressure is loss of a job, support, or reputation leaves the traditional rule unsatisfied, and the answer then depends on whether the governing statute is traditional or reformed and on whether it reaches nonviolent coercion.