Concept
Nonconsent and Resistance
Rape
Nonconsent and Resistance
The earlier sections of this chapter concerned the defendant's side of the transaction: the act of penetration and the means, force or threats, by which he accomplished it. This section turns to the complainant's side. Rape at common law was the carnal knowledge of a woman "forcibly and against her will," a definition that divides into an act, a means of imposition, and a state of mind on the woman's part toward the act and the means.1 The final phrase supplies that third part. English law required that the intercourse be done both by force and against her will, and American courts adopted the same rule, often expressing the second requirement in phrases such as "without her consent."2 This element is usually called nonconsent: the intercourse had to occur without the victim's effective consent, meaning consent the law is willing to count as her own choice.3
The word effective carries the weight, because common law treated consent as ineffective in several recurring situations.4 A woman who submits after being overpowered, or after a man puts her in fear of great and immediate bodily harm, has not consented in the legal sense, as the preceding sections showed. The remaining situations are incapacity, which covers drugs or intoxicants that deprive her of the ability to resist, a woman so impaired that she cannot give consent, and a girl under ten, who was deemed incapable of consent as a matter of law, and fraud so extreme that she did not know she was engaging in intercourse or did not know the man was not her husband.5 Each of these has its own section later in this chapter. They share a purpose, which is to identify the cases in which something that looks like agreement on the surface does not reflect her real choice. The rest of this section concerns how the common law answered the question when the facts fell outside every one of those categories.
Because force and nonconsent stand side by side in the definition, a prosecutor who can prove one cannot assume the other. Where a statute or common-law rule requires both, the requirements are cumulative rather than alternative, so the force element could be proved beyond any question while nonconsent is still not established.6 Massachusetts treats the phrase "by force and against his will" as two separate elements, each of which must be satisfied on its own: the Commonwealth must prove intercourse by physical force, nonphysical constructive force, or threats of bodily harm, and must also prove that at the time of penetration there was no consent.7 There is some dispute about whether force is a distinct element at all or only evidence bearing on nonconsent, but in either case the two questions are worth assessing separately.8
The reason the definition makes the complainant's state of mind part of the offense lies in what the crime is. Intercourse between adult partners who agree to it is lawful, so the fact that turns the same physical act into a serious felony is that one participant did not agree. In many contested prosecutions the intercourse itself is undisputed, and the trial narrows to whether the complainant agreed, which puts her account, her conduct, and her credibility at the center of the case. Concern about that narrowing shaped the traditional law. In the seventeenth century Lord Chief Justice Matthew Hale warned that rape is an accusation easily made, hard to prove, and harder still for an innocent accused to defend against, and that attitude doubtless accounts for the narrow way the offense came to be defined and for a set of rules found only in rape prosecutions: that nonconsent be shown by resistance, that the complainant's testimony be corroborated, and that her prior sexual conduct be open to full inquiry.9
Resistance is the first of those devices, and its logic follows from the problem of proof. A state of mind cannot be observed, so the traditional law looked for conduct from which a jury could infer it, and the conduct it looked for was physical resistance. Establishing nonconsent often required proof that the victim continued to resist the man's advances, or a showing of force or threats great enough to make resistance unavailing.10 A woman who fought leaves visible evidence of her unwillingness and answers the worry about false accusation, whereas a woman who did nothing leaves the jury with only her word. The cost of that design is that the trial examines the complainant's behavior at length, and a complainant who froze, or who stopped fighting because further resistance seemed dangerous, had difficulty producing the proof the rule demanded. The passive victim in the force discussion above is the standard example of that gap.
Reform has targeted exactly this feature. Physical resistance requirements have been lessened in some jurisdictions, and elsewhere there is movement toward accepting verbal resistance, or even the absence of affirmative consent, as sufficient.11 Even so, the nonconsent question remains one of fact about the complainant: Massachusetts asks whether she was in fact willing, and it does not require the prosecution to prove that the defendant intended the intercourse to be nonconsensual or knew she did not consent.12 Whether a defendant's mistaken belief in consent can matter is a separate subject, taken up under Defendant's State of Mind. The two subsections that follow take these points in order, first nonconsent as an element and the role of consent as a bar to the offense, then the resistance requirement and the reforms aimed at it.
On an exam, run the means and the nonconsent as two questions. Where the governing rule lists both force and nonconsent, each must be proved separately, so a stem that establishes physical contact has not yet answered whether the complainant agreed at the moment of penetration, and a stem that establishes agreement has answered the case regardless of how rough the encounter was.
Nonconsent as an Element
The usual rule about consent cuts against the person who gave it. A victim's agreement is ordinarily no defense to a criminal charge, because a crime is a wrong to the public as well as to the individual harmed, and a private person cannot license what the community has forbidden.14 A murder defendant therefore gains nothing by showing that the victim, on learning of the plan to kill, handed over the gun and ammunition.15 Rape belongs to a different group. Some crimes are defined by the victim's lack of consent, and for those crimes consent is a bar to conviction because it negates an element the prosecution must prove.16 Rape is the standard example: it is typically defined as unlawful carnal knowledge of a woman without her consent, so a woman's genuine agreement to intercourse removes the offense itself.17
The reason rape is built this way lies in what the crime punishes. Intercourse between adults who agree to it is lawful, and penetration taken alone carries no wrong. The wrong is that one participant never chose the act, which is why the definition has to carry the victim's state of mind inside it. The baseline is an old one: at common law even a touching without consent or legal justification was a battery, and rape is the crime that attaches serious felony liability when the unconsented touching is intercourse.18 In the vocabulary of rape law, nonconsent means a refusal to engage willingly in the act.19 Because that refusal is part of the definition, the prosecution carries the burden of proving it, and the proof is directed to the moment of penetration.20
Statutes do not all say this in the same words. Slightly less than half of the states use phrases such as “without consent” or “against her will” in setting out the elements, while the rest describe prohibited intrusions such as force or compulsion, though questions about consent remain just below the surface of those statutes.21 Where nonconsent is not an element, consent may instead be treated as an affirmative defense, which places the burden of establishing it on the defendant.22 Under either drafting, the question is consent to the particular act charged. In the New Jersey juvenile prosecution of M.T.S. for conduct that would be sexual assault if an adult committed it, the trial court found that the complainant had agreed to heavy petting but had not agreed to the sexual act itself, and it concluded on that basis that the State had proved the offense.23 Agreement to some intimacy therefore leaves the question open for the next act.
The operative concept is effective consent, because the law does not treat every yes, or every absence of protest, as agreement. Submission to physical force is not consent, and neither is submission to a threat of great and immediate bodily harm.24 The mechanism is that consent means a choice, and overpowering a person or threatening serious injury takes the choice away. What remains is compliance with the defendant's demand, and the law declines to count that compliance as the woman's own decision. This overlaps with the force and threat discussions above, since the facts that prove the means of imposition also show that any apparent agreement was not real.
A second limit concerns who is giving the assent. Assent by someone who is legally incompetent, or who because of youth, mental disease or defect, or intoxication is manifestly unable, or known by the defendant to be unable, to make a reasonable judgment about the nature or harmfulness of the conduct, is not effective consent.25 Agreement has value only when the person agreeing can understand what is being agreed to, so a yes from someone who cannot appraise the act is a word with no choice behind it. The inquiry therefore asks about understanding and capacity, and the mere speaking of the word does not answer it.
The formulation just given is a general statement of the principle. The rape-specific applications to unconsciousness, drugs and intoxicants, mental incapacity, and very young girls follow in the incapacity sections, each with its own test. Deception is also reserved for its own sections: the traditional line separates fraud that misleads the victim about the very fact of the conduct, which prevents effective consent, from fraud about a collateral matter, which does not.26 Once nonconsent is understood as an element, the remaining question is how the common law proved it, and the resistance requirement in the next subsection supplies that answer.
The usual trap is to stop at the first appearance of agreement. A stem that reports a spoken yes has not finished the analysis, because a yes extracted by force or a serious threat, or given by a person unable to appraise the act, fails as consent. The reverse also holds: where the facts show free agreement by a capable adult to the act itself, the nonconsent element fails and the offense is not made out, however the rest of the encounter is described.
Resistance Requirement
The preceding discussion explained why resistance became the traditional proof of nonconsent. What remains is how much resistance the law demanded and when it stopped demanding any. The strictest rule, followed in many jurisdictions, required resistance to the utmost: rape was not committed unless the woman opposed the man to the utmost limit of her power.28 Most jurisdictions asked only for reasonable resistance, measured against her age, strength, and the surrounding circumstances rather than against the outer edge of what she could have done.29 Both versions rested on the same credibility rationale. Courts assumed that some women lie about consent, whether to blackmail a man or to explain a discovered affair, and they treated a cry for help, a struggle, and visible injury as the outward sign of unwillingness that answered that suspicion.30 A prosecution could therefore fail even when the defendant's conduct was undisputed, because the complainant had not behaved the way the rule expected.
The intermediate appellate court's reasoning in the Rusk prosecution shows the requirement at work. According to the complainant, Pat, she went with Rusk to his apartment late at night and told him she wanted to go home, and he said he wanted her to stay while he still held her car keys. After she asked whether he would let her go without killing her, and began to cry, she testified that he put his hands on her throat and started lightly to choke her, and that she then submitted. Rusk denied any choking and any threat.31 In reversing his second-degree rape conviction, the court called force an essential element, to be shown either by resistance overcome by force or by threats that prevented resistance, and it found in her testimony no resistance and no fear of the kind that would overcome an attempt to resist or escape.32 The keys might have deterred a getaway by car, the court reasoned, but hardly a call for help in the street, and her fear of the way he looked could not supply the fear the rule required.33 The questions the court asked were what she did, what she could have done, and whether her fear was large enough to excuse doing nothing. Those questions pushed the defendant's own conduct into the background.
The requirement carried its own limit. Intercourse accomplished by placing the victim in fear of great and immediate bodily harm is rape, any consent so obtained is ineffective, and the act remains rape even if the victim did not resist to the utmost, so long as the threats prevented resistance.34 The reason follows from what resistance was for. It served as evidence, and the inference ran from a woman who did not fight to a woman who was willing. A defendant who has threatened to kill her supplies a different explanation for her passivity, so the inference breaks, because submission to a threat reflects fear rather than choice. The fear must itself be reasonable, and the threat is usually one of death or serious bodily injury to the victim or to a third person, often delivered with a deadly weapon, which is the setting in which resistance would be futile.35 The exception shifts the contest from whether she fought to whether her fear was reasonable, and Rusk shows how closely a court may examine that second question.
Critics direct their objection at what the requirement measures. Because force was judged by the victim's response, the defendant's force became criminal only when her state of mind met the standard, which placed on her the burden of proof and of action.36 Resistance also carries physical risk, since fighting back may escalate the violence, and the rule in effect tolerates a man's force until the woman physically resists.37 Many victims describe being unable to resist, or fearing greater harm if they tried, and the modern view recognizes that fear of injury and the relative strength of the two people are obvious reasons a woman does not fight back.38 Under the rule, a woman who submitted to a stranger rather than risk death often could not prove rape, so the protection fell most heavily on the attacker who could subdue quickly or who chose a less assertive victim.39 Reformers accordingly sought to move attention from the victim's behavior to the defendant's conduct and to sever the link between force and resistance.40
The formal utmost-resistance rule has largely faded, but the idea behind it has not disappeared. Statutes in the large majority of states still require both force and nonconsent, and courts commonly read those terms to require the victim's reasonable resistance.41 Some jurisdictions have gone further. Pennsylvania's statute, 18 Pa.C.S.A. § 3107, provides that the victim of rape need not resist, and the force required is only the amount that establishes lack of consent and induces the victim to submit without additional resistance.42 Elsewhere physical resistance requirements have been lessened, and verbal resistance is increasingly accepted.43 Those reforms are taken up in full under Modern Reform Trends. On a traditional or common-law question, the resistance rule and its threat exception remain the framework to apply.
The usual error on an exam is to treat the absence of resistance as a complete defense under the traditional rule. It is no defense when a threat of great and immediate bodily harm explains why she did not resist. The opposite error is to assume that every jurisdiction still demands resistance to the utmost, when the formal rule has largely faded and some statutes dispense with resistance entirely.