Use force. Women like forceful men. They often seem to surrender
unwillingly when they're really anxious to give in.
Ovid*, Ars Amatoria (1st Century A.D.)
*Note: Publius Ovid Naso moved to Rome in his teens and spent most of his bawdy and roguish life there, writing sensuous poetry. His book The Art of Love was a "seducer's manual." He was banished by Caesar Augustus who had moved adultery from a private family matter to the law courts, where it became an act of sedition.
"Women and children first!" Why women?
Feminist saying: "Grow your own dope. Plant a man!"
Rape is an accusation easily to be made and hard to be proved, and
harder to be defended by the party accused, though ever so innocent.
History of the Pleas of the Crown (1736-39)
Unlike most mammals who lose interest in sex outside a restricted mating period,
humans have this persistent interest in infertile social sex.
Ask a woman and a man to write a sentence that includes the words "love" and "sex."
The woman might write, "Tom and I love each other so deeply that sex seems like a beautifully
natural and morally acceptable act." Tom might write, "I love sex."
Male-chauvinist-pig humor: The farmer was headed toward his orchard with a bucket to gather
some fruit. He took a short-cut past a pond. Lo and behold, there were three young women
skinny-dipping in the pond. When they saw the farmer, they said,"Mister, we're naked, and
we're not coming out of here until you leave." The farmer said, " I didn't come down here
to see you girls naked. I came down here to feed the gators."
Women striving to be equal with men lack ambition.
Why is it that when a man talks dirty to a woman it's sexual harassment,
but, when a woman talks dirty to a man, it's $6.95 a minute.
"I regret to say that we of the F.B.I. are powerless to act in cases of oral-genital intimacy,
unless it has in some way obstructed interstate commerce."
Who can find a good woman? She is precious beyond all things.
Always drink upstream from the herd.
Common Law Model Penal Code Texas Law Common Law Model Penal Code Texas Law Minimum Age Defense Between Complainant and Accused Romeo and Juliet Defense Gender Neutral Sex Crimes Degrees of Sex Crimes Requiring Reasonable Resistance or Resistance to the Utmost
Corroboration of Accusation
Medical Examination of the Complainant - The Rape Kit Compulsory Psychological Testing of Complainant Mistake of Fact Date/Acquaintance Rape Lack of Consent as an Element Outcry by the Complaint Rape Shield Statutes and Rules Expert Testimony re "Rape Trauma Syndrome" and "CSAAS" Spousal Consent Express Consent Legal Effect of Changing from "Yes" to "No" Getting to "Yes" by Means of Seduction Teens Having Sex - Putting "Jail" in "Jailbait" Beefing Up Punishment for Sexual Assault of Children Lengthening Statutes of Limitation Minor Testifying by Closed Circuit Television Mandatory AIDS/STD Testing of Sex Offenders Sexual Assault (Carceral Rape) in Prison Underreporting of Sexual Assaults Catholic Clergy and Sexual Assault of Children Chemical and Surgical Castration as Punishment Registration of Convicted Sex Offenders Sexual Assault as a Byproduct or Strategic Tactic of War Adultery Bigamy Fornication Homosexual Acts Incest Indecent Exposure Obscenity Polygamy Prostitution Seduction Sodomy & Bestiality Stalking
[The FBI Uniform Crime Report reflected 80,414 cases of forcible rape in the US for 2006. (1 -stats)] For many years, some criminal law casebooks avoided comprehensive treatment of the subject of sexual misconduct. Discussion of sex crimes, particularly among acquaintances, involves consideration of the role of sex in modern society. In a class of 100 1Ls and a teacher, a few members, males and/or female, may have been victims of sex crimes, e.g., child sexual abuse, rape (1), etc. Consequently, the subject may be one that sparks particularly delicate emotions in some of us. Still, this is a course about criminal law, and sex crimes are an important part of the discipline. So we will cover the subject. Not only are rape prosecutions complex and of obvious social importance, the study of rape reveals how substantive criminal law doctrines reflect deeply rooted social conventions and respond or fail to respond to pressures for social change. From the psychiatric, psychological and sociological perspective, there are more questions regarding sexual violence than answers. For example, is rape (sexual assault) a crime of opportunity or a crime involving a fundamental character flaw common to only a small percentage of Y-chromosomed human beings? Is it a crime committed only by a small group of highly recidivistic, dangerous persons who have a distinct propensity to engage in aberrant sexual behavior? Is sexual assault more about power than about sex? There are more questions than answers. Rape covers evidentiary issues ranging from the type of physical or psychological evidence required to demonstrate whether or not a rape even occurred to when and whether a complainant's past sexual history should be received in evidence. Forcible rape has two ingredients that draw public attention - violence and sex. Add to it a celebrity accused of a sex crime or complaining about being a sex crime victim and you have food for the tabloids and TruTV, e.g., Kennedy cousin William Kennedy Smith (1) and world-champion boxer Mike Tyson, (1 - VIDEO - rape conviction - guilty on 3 counts) see Tyson v. Indiana, 619 N.E2d 276 (Ind. 1993), two big rape trials of the early nineties, the former being acquitted and the latter convicted and given six years of which he served three. [Note: It is in the area of sex offenses that the provisions of the 1962 MPC appear most outmoded in our current society, e.g., the "spousal exception" is recognized by the gender-specific MPC.]
CONTEMPORARY SOCIETAL SEX ROLES OF MEN AND WOMEN
In the context of changing sex roles in contemporary society, one of the things that one might wish to consider in studying rape and other sexual assault crimes is their fairness to women. Does the law view and treat women in the way that men visualize and treat them? With the obvious exception of prison rape, the crime of rape is unique in that most perpetrators are male and most victims female. (1) [Note that the DOJ reports that 1 in 33 men in the US has been a victim of sexual assault, compared with 1 in 6 women.] We might ask, for example, whether there is a pervasive intimidation from male behavior that women feel in our society. Is there a male view point and a female viewpoint? See Erickson et al., Final Report: "Sex Bias in the Teaching of Criminal Law" , Rutgers Law Review, Vol. 42, Page 309 (1990).
It is worthwhile to ponder how the law of sexual assault may change with the the changing of social norms. As huge numbers of women enter the legal profession, as prosecutors, defenders and judges, will the treatment of sex crimes, in which most victims/complainants are women and most actors/accused are male, change even more than it already has? Should the crimes of sexual assault be used to change the norms of society much like the civil rights laws, or should the crimes merely reflect them? If we are going to use the law of sexual assault as a social tool, how far ahead of the curve should we be?
How should modern man act out the sexuality that his chemical makeup encompasses? (1 - Very carefully if he's a federal judge. Kent was impeached by the House on 6-19-09; he resigned when served in prison with a subpoena as his trial loomed in the Senate.) What is the sex role of the male animal of our species? Can we gain an insight by looking at the manner in which the media portray modern man? Do the news and entertainment media perpetuate negative images of maleness? For years, men, especially fathers, have been portrayed, most often on TV sitcoms, as buffoons, incompetents and fools. Why do we get such a kick out of immoral rascals like those depicted in the blockbuster movie Wedding Crashers (1 - Ma, meatloaf!)? Have you ever wondered why "man bashing" is considered acceptable, while the reverse is offensive and politically incorrect? Could it be because men deserve the bashing? What do we think of politicos who look us in the eye and lie about their adulterous activities? See John Edwards, the ex-senator and vice-presidential candidate who sought the presidency. Is woman's pain more worthy of public sympathy than man's? Considering that some of the many protesting heroines in romance novels, TV melodramas and MA rated movies finally surrender and swoon in the arms of their persistent and assertive pursuers, we may want to ask whether it should be a surprise that some men may not believe "no" when they hear it. Remember the famous scene from the book/movie Gone with the Wind ("This is one night you're not tuning me out!") that romanticizes the act of spousal (conjugal) rape - a night of forced passion? The movie portrays Scarlet O'Hara Butler as deliriously happy the morning after and glamorizes the power of Rhett Butler as he forcibly sweeps Scarlet up and carries her to the marital bed against her will. In addition, women are sometimes portrayed by the media as having "rape fantasies" with hidden desire of being "overpowered." With a never ending flume of very explicit pornography featuring provocative females in every conceivable posture readily available to any male with a computer and sufficient intellect to type "free porn" in a Google search box, is it any wonder that some males are confused about the exact dynamics of their sex roles in modern society. (1) [Query: Arguably, does increased access to Internet porn reduce the incidence of sex crime by giving males a free audiovisual window into an erotic peepshow that can serve as an outlet for overpowering sexual urges?] Does women and children first still have efficacy? Is it odd that, in the 1997 Oscar winning film Titanic, the old maritime tradition of "women and children first into the lifeboats" seemed to enjoy complete acceptance by modern audiences? Children are undoubtedly entitled to special consideration due to their innocence and helplessness. Is it because women are birthgivers and caregivers that men naturally choose them as the guardians of the children in times of danger? After all, the very existence of every male depends upon the existence of a female mother; they are currently indispensable in the evolutionary sense to repopulation. Is this why audiences boo and hiss the on-screen heavy who tries to sneak onboard the lifeboat with or ahead of the ladies and kids? Is this idea that men are to lay down their lives for "the weaker sex" patronizing and demeaning to women? Is it repugnant to women or do they foster it? Why should adult women be classified with children when blood begins to flow or the ship starts to list? Does it make moral sense that women should be afforded special protection in an emergency?
DEFINING RAPE/SEXUAL ASSAULT
Common Law: The traditional shorthand definition of rape (1), (2) at common law is the unlawful carnal knowledge of a woman not the wife of the actor by force, fear, or fraud and without her consent. A longhand definition of rape is the act of vaginal sexual intercourse (carnal knowledge) with a woman not the wife of the actor against the will of the woman and by actual or threatened force (physical violence or compulsion that subdued the woman), fear, or fraud in fact (fraud in fact as opposed to fraud in the inducement, see below) that prevents the woman from knowing the true nature of the act, e.g., as where the woman submits thinking that a doctor is penetrating her private parts with a medical instrument rather than his sexual organ. Notice that lack of consent was an element of common law rape. Also, rape was classified as a general intent crime and, thus, there was no requirement that the prosecution prove the attendant mens rea circumstance that the defendant knew or should have known that the victim did not consent. The general culpable intent required was that the defendant knew he was placing his penis in the victim's vagina. Carnal knowledge meant sexual intercourse by a male with a female. Notice that ejaculation or emission is not a necessary part of the proof, only slight penetration. See Annot., What Constitutes Penetration in Prosecution for Rape or Statutory Rape, 76 ALR3d 163 (1977). Sexual intercourse meant penetration of the female genitalia, i.e., the vulva, by the male penis. Fraud applied to deception concerning the nature of the act. Originally, the offense of rape was limited to rape by force, which included carnal knowledge of a woman who was unconscious or so intoxicated as to be unable to consent. The elements of fear and fraud in fact as alternatives to force were added later in the history of the offense. When consent is based on fraud in fact, known as fraud in the factum, it is not valid consent. But note that so-called fraud in the inducement, misrepresentation of the male actor's motives, e.g., a fraudulent promise to marry that induced the woman to consent, did not make the consent invalid. Fraud in the inducement was a misrepresentation that did not prevent the woman victim from knowing the true nature of the act. For an odd-ball case of consent secured by fraud in the inducement, see People v. Evans, 379 N.Y.S.2d 912 (NY 1975) (1) where a glib bachelor, posing as a psychologist, sought to obtain a woman's consent to intercourse. An earlier edition of Professor Dressler's UCL hornbook, raised the issue of fraud by convincing the woman that she is married to the male actor; he pointed out that there is a split of authority as to whether this is fraud in fact or fraud in the inducement and concluded that the majority of jurisdictions would call it fraud in fact to trick the victim into believing the actor is the victim's husband, e.g., where an identical twin poses as his brother who is married to the complainant. But see Suliveres v. Commonwealth, 865 N.E.2d 1086 (Mass 2007). The present UCL5th, p. 594, does not take a position on liability for fraud in factum of the male who engages in sexual intercourse by deceiving a woman who into believing he is her husband or boyfriend. [Note: MPC Section 213.1 states that a male who has sexual relations with a female not his wife commits a third degree felony of gross sexual imposition if she submits because she mistakenly supposes that he is her husband.]
Common law rape was not gender neutral, i.e., a woman could not rape a man. Nor could a woman as a principal in the first degree rape another woman; however, a woman could be liable as a party, e.g., complicitor, to the rape of another woman by a man. A man could not rape another man. Only a man, as principal in the first degree (doer), could rape a woman. Consider the issue of spousal rape. What if a husband forced his wife to have sexual intercourse with him? At common law, a husband could not rape his wife as a doer, but he could be convicted as a party, e.g., complicitor, to the rape of his wife by another man.
At common law, rape was a felony and, as mentioned above, a general intent crime.
Model Penal Code: Article 213 MPC contains the sexual offenses. The MPC 213.1 rape crime expands portions of the common law definition of rape. For example, the concept of sexual intercourse is expanded from the limited common law concept of vaginal penetration by the penis. MPC Section 213.0(2) defines "sexual intercourse" to include vaginal, oral (os) or anal penetration, however slight. Emission is not required. Under MPC Section 213.1, rape is defined as compelled sexual intercourse by a male (It's a male on female not his wife crime.) with a female not the male's wife accomplished by (a) compelling her to submit by force or threat of imminent death, serious bodily injury, extreme pain or kidnapping, to be inflicted on anyone, (b) substantially impairing her power to appraise or control her conduct by administering or employing without her knowledge drugs, intoxicants, or other means for the purpose of preventing her resistance, (c) having sexual intercourse while she is unconscious, or (d) having sexual intercourse with her when she is less than 10 years old. The rape crime is divided to into two degrees, i.e., it is classified as a second degree felony unless (i) in the course of the the offense the rapist inflicts serious bodily injury upon anyone, or (ii) the victim was not a voluntary social companion of the rapist upon the occasion of the rape and had not previously permitted him sexual liberties, in which cases the offense is classified as a felony of the first degree. Notice that, unlike Texas and the common law, lack of consent is not an element of rape or any of the other Art. 213 MPC sexual offenses. The prosecution does not have to prove that the victim did not consent. Nor does the prosecution have to prove that the victim resisted. Instead, the focus is on the use of force or threat of imminent death, serious bodily injury, extreme pain, or kidnapping to be inflicted on anyone to compel the victim to engage in intercourse. Rape also includes instances where the male employs drugs, see the discussion of date rape drugs in Other Resources below, or other means to substantially impair the female's power to control her conduct. Note also that MPC rape also includes a male having sexual intercourse with a female under 10 years of age who is not the accused's wife or with an unconscious female.
In addition to rape, the MPC recognizes a related offense in Section 213.1 (2); this lesser offense is known as gross sexual imposition, again, a male on female not his wife crime. Gross sexual imposition covers sexual intercourse by a male (the male is always the wrongdoer) on a female (always the prosecutrix) not his wife when: (1) he compels her to submit by any threat (not limited to the threats outline for rape, i.e., imminent death, serious bodily injury, extreme pain or kidnapping to be inflicted on anyone; indeed, this crime does not require threat of physical violence at all) that would prevent resistance in a woman of ordinary resolution; or (2) he knows that she suffers from a mental disease or defect that renders her incapable of appraising the nature of her conduct; or (3) he knows that she is unaware that a sexual act is being committed upon her or that she submits because she mistakenly supposes that he is her husband
In Section 213.2 (1) the MPC defines the offense of deviate sexual intercourse by force or its equivalent. "Deviate sexual intercourse" is defined in Section 213.0 MPC as "sexual intercourse per os or per annum between human beings who are not husband and wife, and any form of sexual intercourse with an animal." This definition encompasses individuals of the same or different sex. Under Section 213.2 (1) MPC, a person (male or female) who engages in deviate sexual intercourse with another person (male or female), or who causes another to engage in deviate sexual intercourse, commits a second degree felony offense if (a) he compels the other person to participate by force or by threat of imminent death serious bodily injury, extreme pain or kidnapping, to be inflicted on anyone; or (b) he has substantially impaired the other person's power to appraise or control his conduct, by administering or employing without the knowledge of the other person, drugs, intoxicants or other means for the purpose of preventing resistance; or (c) the other person is unconscious; or (d) the other person (male or female) is less than 10 years old.
MPC Section 213.2 (2) defines the lesser offense of deviate sexual intercourse by other imposition. A person (male or female) who engages in deviate sexual intercourse with another person, or who causes another to engage in deviate sexual intercourse, commits a third degree felony if (a) he compels the other person to participate by any threat that would prevent resistance by a person of ordinary resolution; or (b) he knows that the other person suffers from a mental disease or defect which renders him incapable of appraising the nature of his conduct; or (c) he knows that the other person submits because he is unaware that a sexual act is being committed upon him.
MPC Section 213.3 defines the offense of corruption of minors and seduction. The offense is defined as occurring when a male has sexual intercourse with a female not his wife, or any person (male or female) who engages in deviate sexual intercourse or causes another to engage in deviate sexual intercourse if: (a) the other person is less than 16 years old and the actor is at least 4 years older than the other person; or (b) the other person is less than 21 years old and the actor is his guardian or otherwise responsible for general supervision of his welfare; or (c) the other person is in custody of law or detrained in a hospital or other institution and the actor has supervisory or disciplinary authority over him; or (d) the other person is a female who is induced to participate by a promise of marriage which the actor does not mean to perform. An offense under paragraph (a) is a third degree felony; the other offenses are misdemeanors. Notice that paragraph (d) is the MPC version of the statutory crime of seduction (1- Wiki).
MPC Section 213.4 defines the misdemeanor offense of sexual assault. It applies to persons (males or females as the actor). It defines sexual contact as "any touching of the sexual or other intimate parts of the other person (males or females) for the purpose of arousing or gratifying sexual desire." The crime is defined as a person (male or female) having sexual contact with another person not his spouse, or causing another to have sexual contact with him if: (a) he knows that the contact is offensive; (2) he knows that the other person suffers from a mental disease or defect which renders him or her incapable of appraising the nature of his or her conduct; or (3) he knows that the other person is unaware that a sexual act is being committed; or (4) the other person is less than 10 years old; or (5) he has substantially impaired the other person's power to appraise or control his or her conduct, by administering or employing without the other's knowledge drugs, intoxicants or other means for the purpose of preventing resistance; or (6) the other person is less than 16 years old and the actor is at least four years older than the other person; or (7) the other person is less than 21 years old and the actor is his guardian or otherwise responsible for the general supervision of his welfare; or (8) the other person is in custody or law or detained in a hospital or other institution and the actor has supervisory or disciplinary authority over him.
Finally, MPC Section 213.5 defines the misdemeanor offense of indecent exposure as the actor (male or female), for the purpose of arousing or gratifying sexual desire of himself or any person other than his spouse, exposing his genitals under circumstances in which he knows his conduct is likely to cause affront or alarm.
[Note: With regard to offenses where criminality depends on the child's being below a critical age other than 10, Section 213.6(1) provides that it is a defense for the actor to prove by a preponderance of the evidence that he reasonably believed the child to be above the critical age. But also note that when criminality depends on a child's being below the age of 10, it is not a defense that the actor did not know the child's age, or reasonably believed the child to be older than 10. See Statutory Rape Under the Model Penal Code below.]
Texas Sexual Assault: Sexual assault by force, threat or fraud, a second degree felony offense, is found in Section 22.011 TPC. Though some states have followed the MPC lead in removing the element of lack of consent from their sexual assault statutes, Texas still requires the prosecution to prove that sexual assault of an adult was "without the complainant's consent." See Section 22.011(a)(1). Notice, however, that there is a long laundry list of circumstances that prove lack of consent. A sexual assault under (a)(1) is without the consent of the other person if: (1) the actor compels the other person to submit or participate by use of physical force or violence; (2) the actor compels the other person to submit or participate by threatening to use force or violence against the other person, and the other person believes that the actor has the present ability to execute the threat; (3) the other person has not consented and the actor knows the other person is unconscious or physically unable to resist (See Rohypnol and GHB below in Other Resources): (4) the actor knows that as a result of mental disease or defect the other person is at the time of the sexual assault incapable either of appraising the nature of the act or resisting it; (5) the other person has not consented and the actor knows the other person's unaware that the sexual assault is occurring; (6) the actor has intentionally impaired the other person's power to appraise or control the other person's conduct by administering any substance without the other person's knowledge; (7) the actor compels the other person to submit or participate by threatening to use force or violence against any person, and the other person believes that the actor has the ability to execute the threat; (8) the actor is a public servant who coerces the other person to submit or participate; (9) the actor is a mental health services provider or a health care services provider who causes the other person, who is a patient or former patient of the actor, to submit or participate by exploiting the other person's emotional dependency on the actor; (10) the actor is a clergyman who causes the other person to submit or participate by exploiting the other person's emotional dependency on the clergyman in the clergyman's professional character as spiritual adviser; or (11) the actor is an employee of a facility where the other person is a resident, unless the employee and resident are formally or informally married to each other under Chapter 2, Family Code.
Since 1994, the Texas statutes have omitted any differentiation between spousal sexual assault and sexual assault of a non-spouse. The term "female sexual organ" includes the vulva, i.e., tissue surrounding the vagina, as well as the vagina. "Penetration" is not defined in the TPC.
Aggravated sexual assault, a first degree offense, is defined in Section 22.021 TPC. (1) There are a number of circumstances that aggravate sexual assault. For example, this crime occurs when the attacker causes serious bodily injury or tries to kill the victim or compels submission by threat of death, serious bodily injury, or kidnapping of another. There is no requirement that the other person not be the spouse of the defendant. The aggravated rape law was first changed in 1987 to allow a spouse to be convicted of aggravated sexual assault against the other spouse. The Texas crime of sexual assault of a child is described below.
DEFINING STATUTORY RAPE/SEXUAL ASSAULT OF A CHILD
Statutory rape at common law: Statutory rape (1), (2) is generally defined as unlawful intercourse with a female, not the wife of the accused, who is too young to give effective consent. One might view it as a special form of child abuse. The age of consent in set by statute. Females below the statutory age of consent are legally incapable of consenting to intercourse. Thus, consent of the victim is no defense. The crime was legislatively created in England during the thirteenth century in order to afford special protection to females deemed to young to appreciate the consequences of their actions. In the common law era, one early statute put the age of consent at ten, i.e., a female under the age of consent could not consent to intercourse. The purpose of the crime was to protect the innocence and chastity of the young virginal female, in part, to make her more marriageable. In modern times, we seek to protect the young from their own maturity. The trend in modern days has been to raise the age of consent and to make the crime gender neutral. In some forty-five or more states that offense is gender neutral, protecting both youthful females and males. Note that the age of legal consent, below which consent is not a relevant issue, varies among the states. (Statutory rape/sexual assault of a child laws by state.) Mistake of Fact as to Age in Statutory Rape - Though mistake of fact had been generally recognized by English courts in criminal cases since 1638, it wasn't until the later half of the nineteenth century that lawyers began to raise the issue of whether mistake of fact re age could be a defense to statutory rape. Under the common law, statutory rape was a strict liability crime; hence, mistake of fact as to age, even if reasonable, was no defense. The common law rule remains the majority rule among the states and federals today. Texas case law has indicated that mistake of fact as to age is not a defense to sexual assault of a child. See Vasquez v. State, 622 S.W.2d 864 (Tex. Crim . App. 1981); Sawyer v. State, 655 S.W.2d 226 (Tex. App. [14th Dist.] 1983). The MPC Section 213.6(1) position on the influence of mistake as to age on sex offenses is that when criminality depends on a child being below the age of ten, it is then and only then no defense that the defendant believed the child to be older; otherwise, mistake is a defense that the actor must prove by a preponderance of the evidence. Prompted perhaps by the fact that the statutory rape crime carries heavy potential punishment and often imposes lifetime stigma of sex offender under registration statutes, there has been a movement towards recognition of (reasonable) mistake as a defense to statutory rape or sexual assault of a child. Some states have judicially recognized the mistake of fact re age defense. See People v. Hernandez, 393 P.2d 673 (CA. 1964); State v. Elton, 680 P.2d 727 (UT 1984); State v. Guest, 583 P.2d 838 (AK 1978); Perez v. State, 803 P.2d 249 (NM 1990). In approximately seventeen states, the legislatures have enacted laws allowing mistake re age as a defense in some form to statutory rape or sexual assault of a child. See Garnett v. State, 632 A.2d 797 (MD 1993) (1) for discussion. (1 -stats) See also Carpenter, Statutory Rape, Strict Liability and the Public Welfare Model, 53 Am. Univ. L. Rev. 313 (2003).
Mistake of Age in Attempted Statutory Rape - In the chapter on rape, Dressler's UCL5th, p. 395, raises the issue whether there can be a crime of attempted statutory rape when there is a mistake of age. UCL seems to conclude that there are too few common law cases to tell. As a general rule, attempt occurs when the accused, with intent to commit a specific offense, performs an act that constitutes a substantial step toward commission of the target offense. Attempt at common law is a specific intent crime (defendant must intend to commit the act and must also intend to commit the target offense). In the substantive crime of statutory rape, the proof must show that the defendant intends to engage in intercourse with a female but does not have to show that he intends that his partner be underage. The age issue is viewed by some as an attendant circumstance for which there is strict liability. [Note: Dressler suggests that almost everyone agrees that the ordinary specific intent requirement of attempt crimes should not apply to attendant circumstances; of course, a state legislature, as a matter of policy, would be free to attach a mens rea, e.g., recklessness, to the attendant circumstance of age in attempts.]
Statutory rape in the Model Penal Code
Rape occurs under Section 213.1 (1)(d) MPC when a male has sexual intercourse with a female not his wife and the female is less than 10 years of age. With regard to Article 213 offenses, Section 213.6 (1) provides that whenever the criminality of conduct depends on a child's being below the age of 10, it is no defense that the actor did not know the child's age, or reasonably believed the child to be older than 10. In the sense that the prosecution does not have to prove a culpable mental state regarding the age element it can be said the MPC does permit strict liability with regard to specified sex offenses where the victim is under 10 (ten) years of age
Sexual assault of a child in Texas: Sexual assault of a child is included in the definition of both sexual assault, Section 22.011 TPC, and aggravated sexual assault, Section 22.021 TPC. See Hernandez v. State, 861 S.W.2d 908 (Tex. Crim. App. 1993) (1). The principal theory of sexual assault of a child, which is derived from statutory rape, is that females and males under a certain age who are not married to the accused are incapable of giving consent to intercourse that will be recognized by law. The age of consent in Texas is 17; it is an affirmative defense (The defendant has the burden of production and also has the burden of persuasion by a preponderance of the evidence.) if the accused was not more than three years older that the child who was 14 or older at the time of the offense. Until 1994, prior promiscuity of the complainant was a defense to sexual assault of a child if the child was over 14 at the time of the act. [Note: As a matter of policy, consider whether it was a good idea to abandon the prior promiscuity defense. Under the present law, the fact that the child was younger than 14 is an aggravating factor.] Notice that the Texas sexual assault statutes, including sexual assault of a child, are gender neutral, meaning they protect both male and female complainants from sexual assault. The sexual assault of a child provisions protect children against penetration (1)(2) of the anus or the female sexual organ by any means, penetration of the mouth by the sexual organ, and contact of the sexual organ with the mouth, anus, or sexual organ. In 2007, in Section 22.021 (f) TPC, the minimum term of imprisonment for aggravated sexual assault was increased to 25 years if the victim is younger than six years of age at the time the offense is committed or the victim of the offense is younger than 14 years of age at the time the offense is committed and the actor commits the offense in a manner described by Subsection (a)(2)(A) of Section 22.021 TPC. In addition, in 2007, the legislature enacted Section 21.02 TPC creating the crime of Continuous Sexual Abuse of a Young Child or Children; the new crime carries a term of not more than 99 years or less than 25 years. Finally, in 2007, the Texas Legislature created a death penalty crime in Section 12.42(c)(3) TPC for a second offense of aggravated assault of a child under specified conditions. The death penalty portion of this Texas law is no doubt unconstitutional in light of Kennedy v. Louisiana, ___U.S. __, 129 S.Ct. 1 (2008) rejecting the application of the death penalty for rape (sexual assault) of a child on the ground that the Eighth Amendment's prohibition against cruel and unusual punishment bars the states from imposing the death penalty for the rape of a child where the crime did not result and was not intended to result in the child's death; however, the non-capital life-without-parole provisions of habitual offender statutue Section 12.42(c)(3) TPC as applied to the second offense of Section 22.021(f) TPC should survive; note that similar death penalty laws in Montana, Oklahoma, and South Carolina also appear to be consitutionally infirm. Note also that Section 12.42(c)(4) TPC also creates a life-without-parole sentence for the offender convicted of his second Section 21.02 TPC sexual assault on a child.
"Romeo and Juliet" Defense - Statutory Rape When the Adult Defendant Was Not More Than a Set Number of Years Older Than the Victim - Criminal Responsibility of Adult Teenagers for Engaging in Consensual Sex with Teenage Juveniles
The statutory rape/sexual assault statutes of some states create a so-called "Romeo and Juliet" defense or affirmative defense when there is only several years between the adult accused and the minor victim who have engaged voluntarily in sexual intercourse or deviate sexual intercourse. For example, in Texas, the age of consent is seventeen; Texas has a "Romeo and Juliet" affirmative defense when the perpetrator (actor) was not more than three years older than the complainant and was not at the time required to register as a sex offender and did not have a reportable conviction under the Sex Offender Registration Program and the complainant was fourteen years of age or older. See Section 22.011(e) TPC, In Texas, the accused has the burden of production of evidence raising the affirmative defense and must prove the affirmative defense by a preponderance of the evidence. [Query: Would it be a violation of equal protection or due process to make this defense available only in cases of heterosexual intercourse or would a "Romeo-Romeo" or "Juliet-Julient" claim work? See Lawrence v. Texas, 539 U.S. 558 (2003).]
LEGAL, MORAL, AND EVIDENTIARY QUESTIONS IN SEX-RELATED CRIMES
Gender Neutral Sex Crimes: In the age of political correctness, should sex crimes be gender neutral. Outside of prison, are men ever the victims of sexual assault? (1) Should sex crimes protect males against against sexual predation by females? Is the sexual stereotype of men as aggressors and women as passive a distortion of reality? Should consent be an issue sexual encounters with children when the male is a minor and the female is an adult? For example, when a female high school teacher has sex with an underage, e.g., under seventeen in Texas, male student? We see these cases from time to time. Google "Debra LaFave (1)," "Mary Kay Letourneau," "Pamela Diehl-Moore," "Cara Dickey," "Pamela Rogers, (1)" "Sandra Beth Giesel." Why do these cases make the news? Do you think of any of these women as a rapist? Do we feel differently about victimization of children when the perpetrator is a male and the child is a female? Are female abusers viewed as predators? Should punishment differ markedly when the female teacher's victim is a female? In the case of forcible rape, is it easy to visualize a case where an adult female is guilty of forcibly raping or sexually assaulting an adult male? Is it safe to assume that the sexual assault of a male victim by a female is just as traumatic to the male as is the sexual assault of a female victim by a male perpetrator? In cases where consent is an element, should the fact of a male's arousal preclude a finding of non-consent? [Note: Some women teachers are wrongfully accused of this crime. (1) (2)] Degrees of Sex Crimes: The Model Penal Code, Texas and numerous other states have recognized that not all rapes and sexual assaults are deserving of the same punishment grade. You will find different statutory ranges (degrees or classes) of punishment attached to the various sex crimes. In an era when society is particularly focused on sex crimes involving adults and the youthful females and males, some jurisdictions go ballistic on adults. Recently, some states have increased the mandatory minimum punishment for certain sex crimes against children. Louisiana and Georgia tried to impose the death penalty for forcible sexual assault of children. Sensing the political hay they could bale, Texas politicians jumped on the haywagon. As mentioned above, in 2007 the Texas Legislature enacted its version of the so-called "Jessica's Law," spawned by a case from Florida where an admitted pedophile killed a young girl by burying her alive. The Texas law created a new sex crime, continuous sexual abuse of children, defined as two or more acts of sexual abuse (indecency with a child by contact with genital or anus, sexual assault, aggravated sexual assault, aggravated kidnapping with intent to violate or abuse the victim sexually, burglary of a habitation with intent to commit a sexual offense, sexual performance by a child) of a child under age 14 over a minimum period of at least 30 days; this new crime does not apply to juveniles and embodies an affirmative defense if the defense can show by a preponderance of the evidence that the defendant was not more than five years older than the victim, didn't use duress, force, or threat, and was not a registered sex offender. Texas has also established a 25 year calendar minimum for aggravated sexual assault where the victim is a child under 6 years of age or where the victim is a child under 14 and there are certain aggravating circumstances such as using or exhibiting a deadly weapon, threatening death, or causing serious bodily injury. A second conviction for continuous sexual abuse draws a mandatory life sentence. A second conviction for the aggravated form of continuous sexual abuse carries life or the death penalty, though the death penalty is not available as a result of Kennedy v. Louisiana, __U.S. __ (2008). [Note: One of the problems with the Texas Legislature is that it has taken the excellent TPC of 1974 and made it increasingly complex every two years, sometimes without much apparent thought other than looking good to the masses. Our present TPC is still good compared to other states, e.g., California, but nbecause of anything the Texas Legislature has done, other than not screwing it up as much as they might have.]
Requiring Reasonable Resistance or Resistance to the Utmost to the Sexual Attack
Since lack of effective consent is central to sexual assault of a responsible adult under the statutes of many states, we have the question of what is and what isn't the degree of "threat of force" or "force" that would render consent legally ineffective. In cases where the charge is sexual assault by threat of force or force, should evidence of some reasonable amount of resistance, i.e., fighting back, to the sexual attack be required before a conviction is allowed? At the extreme, should courts require that the victim resist to the utmost? If either form of resistance were to be required, should the requirement be waived when the facts reveal that resistance would have been futile or was prevented by the nature of the attacker's threats? It would seem that resistance should always be excused if it is prevented by threats that create fear of substantial injury in the complainant. If threats can replace resistance, how serious must the threat be in term of the amount and extent of injury threatened? Must the complainant's fear of injury be reasonable? If the fear is not reasonable, the accused may not have realized that his/her actions put the complainant in fear and prevented resistance. What are the potential problem with an objective/subjective test of fear?
The requirement that a victim resist to the utmost has been virtually abolished. Apparently, a few states retain the requirement of reasonable resistance, unless resistance is rendered futile or prevented by the accused's threats. In Texas, sexual assault cases involving the use or force or threat of force, victims are not required to resist as an element of the crime. See Barnett v. State, 820 S.W.2d 240 (Tex. Crim. App. 1991). See also Dripps, Beyond Rape: An Essay on the Difference Between the Presence of Force and Absence of Consent, 92 Colum. L. Rev. 1780 (1992). But see West, Legitimating the Illegitimate: A Comment on Beyond Rape, 93 Colum. L. Rev. 1442 (1993). A rule requiring some level of resistance might be of more evidentiary relevance in cases of so-called "date (or acquaintance) rape." Resistance would serve to corroborate any required lack of consent and show that the accused had clear notice that consent was being withheld. However, that does not mean that resistance should be a required element of the offense. If lack of consent is an element of rape or sexual assault, as it is in Texas in Sections 22.011 and 22.021 TPC, how can we be sure in date/acquaintance rape that the defendant knew of the non-consent?
In the case of sexual intercourse between persons who are dating one another, haven't we all heard the statement "No means no!" Do social mores support the view that an initial "No" to a sexual encounter does not always mean a final "No"? Even if we grant that "No" may turn to "Yes" if the aggressor says or does things that persuade the other person to consent, should the criminal law reject that view? Have our young males been taught to be sexually aggressive in pursuing and persuading females to engage in recreational sex? Have females been taught how to handle men in the social context?
Is it advisable to abandon lack of consent as an element in sexual assault and focus entirely on the defendant, asking whether the defendant knew or should have known that his conduct would invoke fear in the complainant?
For much of its history the crime of rape was characterized as the easiest criminal allegation to make by the alleged victim and the hardest to disprove by the accused defendant.(1) MPC Section 213.6(5) even says "In any prosecution before a jury under this Article, the jury shall be instructed to evaluate the testimony of the victim or complaining witness with special care in view of the emotional involvement of the witness and the difficulty of determining the truth with respect to alleged sexual activities carried out in private. Does this make sense? Would it float in modern day rape and sexual assault cases?
Corroboration of Accusation of Sex Offenses
Should there be a legal requirement of corroboration of sex offenses? Is it too easy to allege and prove rape and too hard to defend against a fabricated cry of rape without a requirement of corroboration? The common law did not require corroboration of the rape victim's testimony. The Model Penal Code has a corroboration rule in Section 213.6(5) - "No person shall be convicted of any felony under this Article upon the uncorroborated testimony of the alleged victim." In Texas, we have Article 38.07 CCP which dispenses with the corroboration requirement if the sexual assault complainant reports (outcry) the attack within one year after the date on which the offense is alleged to have occurred; also, there is never a corroboration requirement it the complainant was younger than eighteen, sixty-five years of age or older or was a person eighteen years of age and older who by reason of age or physical or mental disease, defect, or injury was substantially unable to satisfy his/her need for food. shelter, medical care, or protection from harm. See Scoggan v. State, 799 S.W.2d 679 (Tex. Crim. App. 1990). Virtually all other states, with the exception of New York, have no corroboration requirement for rape or sexual assault.
The first policy issue is whether there should be a corroboration requirement. If so, the next policy issue is whether and under what circumstances the corroboration requirement should be done away with. Do corroboration requirements exist for other crimes? Are they justified in the case of sexual assault? How prompt must the outcry be to suffice as a substitute for corroboration? Does the general principle that guilt must be proved beyond a reasonable doubt sufficiently protect persons accused of sexual assault?
Medical Examination of the Complainant - The "Rape Kit" What about the presence of biological fluids that could confirm intercourse and penetration as well as conclusively identifying the person who deposited the fluids. We have all heard of the rape kit (1), (2) used by specially trained forensic nurse examiners or doctors (1) who examine persons claiming to be victims of sexual assault/rape. The rape kit typically contains microscopic slides, plastic bags and boxes for storing semen, saliva, hair, fingernail scrapings, skin, etc., collected from the victim. Injuries are also photographed. Should we require gynecological medical examination, e.g., swabbing the affected area for traces of semen, seminal fluid, or spermatozoa, of female complainants and mandate scientific testing of the sample for the presence of such fluids and DNA? Assuming that biological samples are available, should we use DNA testing in every sexual assault case, particularly when the accused denies the accusation of a sex crime? Note that, beginning in 2009, federal legislation will require that sexual assault victims be allowed to submit to a anonymous "Jane Doe rape kit" examination without having at that time to decide whether to talk to the police.
Compulsory Psychological Testing of Sex Crime Complainant
Should the defense in a sex crime case be allowed to compel the sexual assault complainant to undergo a psychiatric or psychological examination to determine if there is a condition of the mind that would predispose the complainant to falsely claim that s/he was the victim of a sex crime, e.g., a female with a hysterical personality that caused her to make unfounded allegations of sexual misconduct? What if the prosecution's theory is that the complainant was incapable of consenting to the sexual conduct because of mental illness or mental retardation? If the prosecution is going to offer testimony of an expert witness who examined the complainant or if the victim's mental state bears directly on an essential element of the offense, doesn't it make sense that the defense should have the right to have the complainant examined by a defense expert? SeeHamill v. Powers, 164 P.3d 1083 (Okla. Crim. App. 2007), a case where the appellate court issued a writ of mandamus ordering the trial court to have the prosecutrix examined by a defense expert. (1 - rape fantasy)
Mistake of Fact as to Consent
It would seem that there are couple of approaches to the mistake of fact issue in rape/sexual assault prosecutions. First, under the common law and the law of Texas and some other states that follow the traditional approach, absence (lack) of consent is typically an element of rape or sexual assault. When lack of consent is an element of the crime, the prosecution has the burden of proving lack of consent beyond a reasonable doubt. If there is a mistake of fact defense in the jurisdiction, we could say that we don't need it here because the prosecution already has to prove the element of lack of consent beyond a reasonable doubt. We could also say that lack of consent of the complainant is not an element concerning which the accused is required by law to have any mental culpability and that the only culpable mental state that the accused must be shown to have is the intent to engage in the sexual act at issue. On the other hand, if the accused must have a culpable mental state with regard to the lack of consent element it can be argued that mistake of fact should be available to negate that culpability. Remember that rape is a general intent crime at common law and that the common law as a general rule allowed an honest (good faith) and reasonable mistake of fact to negate general intent of a general intent crime. Texas also recognizes the general defense of reasonable mistake of fact in Sec. 8.02(a) TPC where it is a defense to prosecution that the actor through mistake formed a reasonable belief about a matter of fact if his mistaken belief negated the kind of culpability required for commission of the offense. Section 6.02 TPC provides that if the definition of an offense does not prescribe a culpable mental state a culpable mental state, e.g., recklessness, is nevertheless required unless the definition plainly dispenses with any mental element. So the question becomes whether the common law and/or Texas mistake of fact law would allow the defendant to negate the defendant's mental culpability, if any, re the lack of consent element with proof of an honest, reasonable mistake of fact, i.e., that the accused reasonably believed that the complainant consented to the sexual conduct at issue. Texas courts seem reluctant to provide the accused with a right to a mistake of fact instruction re lack of consent in sexual assault cases where there is evidence of force or actual consent. Here are some cases: (1)(2)(3). Other jurisdictions appear to permit a reasonable mistake of fact defense regarding whether the complainant consented. See People v. Mayberry, 542 P.2d 1337 (Cal. 1975). But see Commonwealth v. Lopez, 745 N.E.2d 961 (Mass. 2001). Dressler's UCL6th, Section 33.05, pp.585-586, evidently supports the view that a rape defendant who genuinely and reasonably believes the complainant is consenting is acting without moral culpability. Dispensing with the good faith reasonable mistake of fact defense treats the general intent crime of rape as a strict liability offense. Second, under Sec. 2.04(1)(a) MPC, mistake as to a matter of fact is a defense if the mistake negatives the purpose, knowledge, belief, recklessness or negligence required to establish a material element of the offense. On the other hand, MPC Chapter 213 and some reformist states have omitted lack of consent as an element of rape/sexual assault. If a jurisdiction does not require proof of lack of consent as an element, then it stands to reason that mistake of fact would not be available to negate that nonexistent element, i.e., there is no element of lack of consent to negate. Does the fact that mistake of fact is not an available defense to rape/sexual assault in those jurisdictions mean that the defendant is barred from introducing evidence that the complainant consented? It would make little sense to allow the person accused of rape/sexual assault to be convicted when the complainant was a competent adult who freely and voluntarily consented to engage in the sexual conduct. Similarly, it would seem to make little sense to convict a person of rape/sexual assault where it reasonably appeared to him/her subjectively and objectively that the complainant was consenting. What we see is that states without a lack of consent element in the crime that can be negated by mistake of fact, nevertheless may permit the defendant to shoulder the burden of raising the defense of "consent." See State v. Koperski, 578 N.W.2d 837 (Neb. 1998). See also ; Reynolds v. State, 664 P.2d 621 (Ak. 1983). In such jurisdictions, whether the defendant has only the burden of production or also the burden of persuasion on the "consent" defense must be sorted ?
The words "date rape" (1) and "acquaintance rape" have been coined to describe forced sex between people who know each other socially. On the other side of the coin are the forcible stranger rapes where the attacker is not a social acquaintance. In the case of sexual attacks by strangers there is typically little reason to ponder the consent issue. For most people, it is not customary to consent to random forcible sex with total strangers. Yet we all know, many from personal experience, that consensual sex is practiced among some people who date. Do the victims of sexual assaults by dates have to counter the myths and stereotypical attitudes that "all rapes are committed by strangers" or that the date rape victims are people who "asked for it"? Date rape victims contend that sexual assault is not about a misunderstanding or about a decision that is regretted the next morning. Rape is rape, they say. Any form of forced nonconsensual sex, whether it be between spouses, friends, neighbors, co-workers or classmates, is a crime. The question is simply, "Was the complainant willing?" Yet one may ask whether some date rapes are the natural consequence of the actor, usually males, making reasonable mistakes in believing that the the other party is only playing coy, i.e., pretending or feigning lack of consent to the actor's sexual advances. The legal question might become: What legal effect, if any, should the existence of a good faith and reasonable mistaken belief on the part of the actor that the other party is freely and voluntarily consenting to engage in the sexual act have on the actor's liability for rape/sexual assault?
Lack of Consent as an Element
If lack of consent is an element of the crime of rape or sexual assault, as it is in sexual assault of a competent adult in Texas, what should the default position of the criminal law be on that element. Suppose that the facts show sexual relations between the parties, but do not reflect by words or acts either consent or a lack of consent, just sexual relations with no resistance by the complainant. Should this be sufficient to show that the relations were "without consent"? Should the default position be that a sexual act is deemed to be nonconsensual, except when it is shown that there was an affirmative manifestation of consent by the complanant's words or acts? Or should the default position be that the sexual act does not constitute sexual assault unless there is affirmative proof by words or deed, perhaps beyond a reasonable doubt, that the sexual act was without the consent of the complainant? This is the issue in State v. Lederer, 299 N.W. 2d 457 (Wis. 1980). What do you think about the Antioch College Sexual Offense Policy? (1) Would you favor it for your law school? See VIDEO in sidebar.There's an web outfit that will sell you a "Men's Consensual Sex Contract" for a $30 "donation." (You'll have to get that hyperlink elsewhere.)
Outcry by the Complainant
Should the law of sexual assault require an outcry by the victim? The common employed a rule that required victims of rape to make an "outcry." Originally the "hue and cry" requirement had applied to all violent crimes, but it was eventually discarded, except in the case of rape. The Model Penal Code, Section 213.6 has an outcry requirement. Texas links the outcry to the requirement of corroboration in Article 38.07 C.C.P. See also Art. 38.072 CCP regarding the admissibility of the otherwise hearsay outcry of the child abuse victim below a certain age. [Note: Our state legislature passed two versions of the Art. 38.072 in 2009.]
Rape-Shield Statutes and Rules
In virtually all states there are statutes or evidentiary rules that limit or prohibit introduction of the prior sexual history of complainants in sexual assault cases. The federal rule is found in Rule 412 Fed.R. Evid. See Michigan v. Lucas, 500 U.S. 145 (1991) upholding the federal rape-shield rule. The reasoning is that the fact the complainant is promiscuous or unchaste does not support the argument that s/he consented to the sexual contact in issue. A shield statute might be used for other purposes, e.g., to bar evidence of a sexual assault victim's sexual orientation. See People v. Murphy, 919 P.2d 191 (Co. 1996). As a matter of legal history, thirty-five years ago most states had a jury instruction that allowed the fact-finder to infer consent in forcible rape cases from proof that the female complainant had engaged in promiscuous sexual misconduct - in many jurisdictions, one such unchaste act rendered the complainant unchaste. We do know from former days, when inquiry into the sexual misconduct or lack of chastity of a complainant was allowed, that some complainants were so disquieted by the potential embarrassment of having their sexual history a matter of judicial record that they became reluctant witnesses. Of course, when the law permits the defense to attack the complaining witness with prior sexual misconduct, defenders may have an ethical duty to go there with cross-examination. Texas has a "rape-shield" rule in Rule 412 Tex. R. Evid. This rule sets up a barrier to impeachment of the complainant with evidence of previous sexual misconduct in the form of opinion or reputation character evidence. Evidence of specific instances of the complainant's prior sexual misconduct is admissible only in limited circumstances, e.g., past sexual conduct with the accused to support the defense of consent by the victim. Pursuant to the shield statute, the defender who desires to impeach the victim with evidence of specific instances of past sexual behavior must petition the court for permission; the court conducts an en camera hearing weighing the danger of unfair prejudice against the probative value of the evidence.
What effect should promiscuity of the complainant have on the defendant's liability for sexual assault. The MPC in Section 213.6 makes it a defense to corruption of minors and some forms of sexual assault that the complainant had, prior to the time of the offense charged, engaged promiscuously in sexual relations with others. As a matter of history, until 1994, former TPC Sec. 22.11(d)(1) provided defendants charged with sexual assault a defense when in the case of sexual assault of a child, the child was fourteen or over at the time of the offense and had prior to the offense, engaged promiscuously in conduct constituting sexual assault of a child; the Texas law provided no definition of "promiscuously." The cases said that this promiscuity defense was available only when the defendant admitted the conduct and claimed that the complainant consented; proof of prior sexual activity did not necessarily amount to promiscuity in light of the circumstances. The 1994 revision of the TPC dropped this so-called "promiscuity defense" to sexual assault of a child.
Expert Testimony Regarding "Rape Trauma Syndrome" and "The Child Sexual Abuse Accommodation Syndrome" (CSAAS)
One issue of current importance is whether and under what circumstances a trial judge should admit into evidence, in the trial of a sex crime, proof of the psychological stress symptoms known as the rape trauma syndrome typically exhibited by victims of sexual assault. (1 - Wiki), (2), (3), (4), (5), (6), (7), (8), (9), (10) See also Garrison, Rape Trauma Syndrome: A Review of a Behavioral Science Theory and Its Admissibility in Criminal Trials, 23 Am. J. Trial Advoc. 591 (2000); Annot. "Admissibility, at Criminal Prosecution, of Expert Testimony on Rape Trauma Syndrome," 42 A.L.R.2d 879 (1986). Rape trauma syndrome evidence is sometimes offered to explain delay in reporting or sexual assault. See Borg-Warner Protective Services Corp. v. Flores, 955 S.W.2d 861 (Tex, App. [Corpus Christi] 1997); Key v. State, 765 S.W.2d 848 (Tex. App. [Dallas] 1989); Brown v. State, 757 SW 2d 739 (Tex. Crim. App.1988). For a case in which expert testimony by a prosecution witness concerning the rape trauma syndrome was allowed to rebut an attack on the credibility of the female complainant who was the purported victim of attempted murder and who supposedly delayed in bringing a complaint. See State v. Grecinger, 569 N.W.2d 189 (Minn. 1997). But see State v. Kinney, 762 A.2d 833 (Vt. 2000) for an example of an expert who went too far in her testimony re statistics of false reports of rape. Here are some Internet resources that may help clarify the meaning of rape trauma syndrome: (1), (2), (3), (4 - Wiki), (5), (6), (7), (8), (9 - 2 page pdf), (10), (11), (12) . Expert testimony may also be allowed in cases of child sexual abuse where there is delayed outcry or a recantation or change in the child's story. See Duckett v. State, 797 S.W.2d 906 (Tex. Crim. App. 1990) allowing expert evidence of the Child Sexual Abuse Syndrome. For a good explanation of the use of experts to explain the Child Sexual Abuse Accommodation Syndrome (CSAAS) from the prosecution viewpoint, see the 63-slide PowerPoint presentation from the NDAA. (1 - explanation of CSAAS) , (2), (3 - 33 pp.), (4), (5 - Introducing Expert Testimony to Explain Victim Behavior).
Admissibility of the Accused's Prior Sex Crimes
The rules of evidence typically prevent the prosecution from introducing evidence of uncharged misconduct, sometimes known as "prior bad acts" or extraneous offenses. See FRE Rule 404 and TRE Rule 404. However, there is a trend to make an evidentiary or statutory exception to the general rule of evidence in the case of defendants on trial for sexual assault offenses and other sex crimes. See FRE Rule 413 (re sexual assault) and FRE Rule 414 (re child molestation). See also Article 38.37 TCCP, notwithstanding TRE 404(b), allowing increased admissibility of other crimes (prior bad acts) of the accused, not limited to sex crimes, in cases where the defendant is on trial for any of a list of certain named crimes, including assaultive crimes and sexual crimes, provided that tthe alleged victim of the offense on trial is a child under the age of 17.
Spousal Consent - Marital Exemption for Sexual Assault
Recall that the common law definition of rape was such that a husband could not be held liable for spousal rape of his wife where the husband was the primary actor. The husband could be liable under complicity theory as an accomplice. And, of course, the husband could be liable for assault/battery. A few jurisdictions still maintain some form of spousal immunity for husbands against rape/sexual assault charges by the wife. Should males who engage in non-consensual sexual intercourse with their wives be liable for rape/sexual assault? Can one argue with a straight face that a woman, by marrying, gives permanent consent to sexual intercourse upon demand by the husband? The question seems ludicrous on its face if it means that a woman would have no legal recourse when her husband forced sex upon her. The more proper question would be whether the legal system should treat forcible intercourse between the spouses as something other than a sex crime? Would doing so violate the wife's right to equal protection of the law? People usually marry because of mutual affection if not love. When love turns to forcible lust, maybe it's time for divorce. Is it also time for a sexual assault for the husband. The husband convicted of rape/sexual assault of the wife and sentenced to incarceration or probation is likely in most states to face a lifetime of registration as a sex offender. Is this a desirable result? Would it be better to convict the husband of some level of assault. Today, many of us take it for granted that a husband may be liable for raping/sexually assaulting his wife. Yet it was only in 1978, in the infamous Rideout case, that the current trend toward criminalizing spousal sexual assault began. See also Articles 2 and 4 of the UN Declaration on the Elimination of Violence Against Women (1993). Note that the Model Penal Code, now about fifty years old, maintains the marital exemption for all sexual offenses as long as the couple is legally married, unless they are living apart. Texas, like many other states, has done away with the spousal exemption in cases of sexual assault and aggravated sexual assault.
If lack of consent is to be an issue in cases of rape/sexual assault, are we moving to a point in time when express (actual) consent to sexual intercourse should be required? If so, will we require it of spouses? Should we put the burden of proof on the accused to prove actual consent rather that requiring the prosecution to prove lack of consent. What about the good faith reasonably mistaken belief on the part of the accused that the complainant, most often a prosecutrix, consented?
Legal Effect of Consenting Party Changing Her/His Mind from "Yes" to "No"
When does sex become sexual assault? According to whom? If a person's feeling are really her/his reality, is it appropriate to say, "If a woman feels raped she's been raped" ? If rape is a general intent crime and lack of consent is an element, wouldn't the accused's good faith, reasonable mistake of fact concerning consent be a defense? See Section 8.02 TPC. Whose definition of consent governs? How much do we need to know about the accuser and the accused in order to decide whom to believe. For an interesting scenario, see In re M.T.S., 609 A.2d 1266 (N.J. 1992). Suppose a party to the sexual act initially consents to the sexual act and it begins. If that party changes his or her mind during the sexual act and communicates the withdrawal of consent to the other party, does the continuation of the act without immediate withdrawal constitute a nonconsensual sexual act, i.e., sexual assault or rape? The cases seem mixed on this issue. Time magazine tells us that the highest courts of seven states, including Connecticut and Kansas, have ruled that a woman may withdraw her consent at any time, and if the man doesn't stop, he is committing sexual assault/rape. See State v. Siering, 644 A. 2d 958 (Conn. 1994); State v. Bunyard, 133 P.3d 14 (Kan. 2006). See also State v. Robinson, 496 A.2d 1067 (Me. 1985). The law of some states has changed to recognize "post-penetration rape." See In re John Z, 60 P.3d 183 (Cal. 2003) indicating that the mid-act withdrawal of consent changes continuation of it to a sexual assault; but see People v. Vela, 218 Cal. Rptr.161 (Cal. 1985). On the other hand, in Maryland and North Carolina, when a woman says yes, she can't take it back and turn the consensual sex act into rape. See Baby v. State, 916 A.2d 410 (Md. App. 2007); Battle v. State, 414 A.2d 1266 (Md. 1980) (1) indicating that the initial consent at the beginning of the sexual act controls and saying, "It was the act of penetration that was the essence of the crime of rape; after this initial infringement upon the responsible male's interest in a woman's sexual and reproductive functions, any further injury was considered to be less consequential."; State v. Way, 254 S.E.2d 760 (N.C. 1979). A question arises why a woman who feels pain or learns that the male is not wearing a condom can't withdraw her effective legal consent. In jurisdictions where immediate withdrawal is required, what is meant by "immediate"? How much willpower does it take for a man who is at the ultimate point of sexual arousal to desist immediately before climax and withdraw? How easy is it for teenagers to uncouple when the girl's parents arrive early from the school board meeting?
Getting to "Yes" by Means of Seduction
There is an old bromide that says: "The difference between rape and seduction is salesmanship." Romance between the sexes and, I assume, among the sexes often involves a selling job. Seduction is no longer a crime in many jurisdictions, e.g., Texas. Where do we draw the line between seduction and sexual assault? Suppose male A persuades female B to engage in intercourse by profession or love and a promise by A that he wants B to move in with him the next day, but after the intercourse A tells B that he never wants to see her again. Suppose this is A's standard line in securing consent to intercourse with females. Should A be guilty of sexual assault on the ground that he intentionally used deception, e.g., a false promise, to secure B's consent to intercourse? When we study property crimes, we find that some jurisdictions, e.g., Texas, call the crime theft (false pretenses) when the accused obtains property by promising performance that is likely to affect the judgment of another in the transaction and the actor does not intend to perform or knows will not be performed, except that a failure to perform the promise in issue without other evidence of intent or knowledge is not sufficient proof that the actor did not intend to perform or knew the promise would not be performed. See Section 31.01 (1)(E) TPC. If we recognize theft of property by deception, why not sexual assault by phony flattery, false promise, deception or fraud? If not sexual assault, should we reinstate the less serious offense of seduction? See Section 213.3 MPC which creates such a crime based on breach of promise to marry.
Teenagers Having Sex - Pregnant Teens - Putting the "Jail" in "Jailbait"
Do you think kids in high school and middle schools engage in sexual conduct? If you think about it, common sense would tell us that there are tens of thousands of consensual sexual assaults of children every day in this country. On the weekends the numbers could be in the hundreds of thousands. Sometimes the female is under the age of consent and the male is over the age of consent. For purposes of example, let's look at the State of Texas. In Texas, every time a female or male under the age of seventeen voluntarily and consensually engages in traditional sexual intercourse (penetration of the female sexual organ by the male sex organ), cunnilingus, anal penetration, or contact between mouth and anus, with an adult, i.e., a person who is seventeen or older and not the spouse of the child, the serious felony crime of sexual assault of a child occurs. The crime also occurs if the adult causes the penetration by any means of the anus or sexual organ of a person under seventeen. See Section 22.011 TPC, a felony carrying from two to twenty years and a possible fine of up to $10,000; the Texas sexual assault of a child crime is even broader than outlined above. If the child is under fifteen, in Texas the offense becomes aggravated and carries from five years to life in prison. See Section 22.021 TPC. Let's face it, most of these crimes are never reported because the minor and the adult are both satisfied with the sexual encounter. Many times, the underage party repeats the sexual act on other occasions with the same adult or other adults. It's called teenage precociousness (precocity) or promiscuity. Guess what? It's not uncommon. Some of the people reading this may have engaged in similar conduct in their younger years. These consensual underage teenage sexual encounters may be the natural product of nature or they may be immoral or both. One thing is for sure. Hundreds of thousands of them occur every year. But what about the pregnancy that results when an adult male has unprotected sex with an underage female? (1 - teenage pregnancy) In those cases, the male has left unmistakable and irrefutable DNA evidence of the sexual encounter, i.e, the baby born out of wedlockwill carry that male's identifiable DNA. The policy issue is this: Should we prosecute statutory rapists or sexual assaulters of underage females who leave the female pregnant? Facts: Almost 40% of children born in the United States are born out of wedlock (1). Roughly sixty percent of the babies born to underage unwed teenage mothers in the United States are fathered by adult males. Many of these adult males don't stick around to support these infants. The illegitimate babies grow up to constitute part of the ever growing generation of boys and girls who are raised by their mothers, grandparents, or foster homes. Either way, the baby loses. If the child becomes a ward of society, we all have to pay for its upbringing. Can we get a handle on the problem of unwed teenage mothers if we start prosecuting adult men who engage in unprotected sex with underage girls and leave them pregnant? Once the investigators identify a suspect and secure a DNA sample from the child and suspect, the case becomes a laydown for the prosecution. One could surmise that enforcement of child support laws on wayward fathers would be much stronger if it was a condition of the adult male's probation for statutory rape/sexual assault.
Beefing Up Punishments for Sexual Assault of Children - Mandatory Minimums and Capital Punishment
Some states have increased the mandatory minimum for sexual assault. As previously mentioned, some states, e.g., La, Ga., attempted to make forcible sexual assault of a child a capital offense. The USSC decided in Kennedy v. Louisiana, __ U.S. __ (2008) that the death penalty for aggravated sexual assault of a child is unconstitutional. In 2007, my own home state of Texas, not to be outdone by Louisiana, tried to provide for the possibility of a death penalty or life without parole for aggravated sexual assault against a child under six years of age or against a child under 14 if there is violent sexual abuse and the defendant has previously gone to prison for the same offense. See Section 12.42(c)(3) TPC. The Kennedy decision invalidates the death penalty portion of the new Texas statute. In Texas, the minimum punishment for aggravated sexual assault was raised in 2007 from 5 years to 25 years when the victim of the offense is younger than six years of age at the time the offense is committed or the victim is younger than 14 years of age and the actor commits the offense in a certain manner, e.g., causes serious bodily injury or attempts to cause death of the victim; by acts or words places the victim in fear that death, serious bodily injury, or kidnapping will be imminently inflicted on any person; uses or exhibits a deadly weapon in the course of the episode; administers or provides flunitrazepam (rohypnol), gamma hydroxybutrate or ketamine to the victim with the intent of facilitating the commission of the offense; etc. See Sec. 22.021 (f) TPC. In keeping with laws designed to protect children from sexual predators, some states have lengthened or eliminated their statute of limitations for certain sex crimes, particularly those perpetrated against children. For example, in Texas, Article 12.01 CCP was amended in 2007 to remove all limitations from sexual assault of a child land aggravated sexual assault of a child under Section 22.011(a)(2) and Section 22.021(a)(1)(B) TPC, continuous sexual assault under Section 21.02 TPC, indecency with a child under Section 21.11 TPC.
Allowing a Minor Complainant to Testify at the Sex Crime Trial Via Closed Circuit Television
Should the rules of criminal procedure allow a child witness to testify via closed circuit television at the trial of a sex crime allegedly perpetrated against the child? The purpose is to shield the minor form having to see the accused during the testimony. In Texas, criminal procedure specifically allows this. See Article 38.071 CCP for precise specifics regarding the logistics of the closed circuit process. See Maryland v. Craig, 497 U.S. 836 (1990) making clear that face-to-face confrontation between the accused and the accuser(s) is at the core of the Confrontation Clause of he Sixth Amendment but recognizing that it may be withheld: (1) when necessary to further an important public policy and (2) only when the reliability of the testimony is otherwise assured; interest in protecting a child from trauma is an important public interest that is sufficient to satisfy the first requirement provided that proper findings are made and supported; findings of necessity must be specific to the case and conclude that the child would be traumatized, not by mere presence in a courtroom, but by the accused's presence, and that the trauma would be more than de minimus (trifling, minimal, insignificant). The Craig case held that that a procedure utilizing a one-way closed circuit television, where the parties and the court can see and hear the witness, who is subject to full cross-examination, but the witness cannot see the defendant, meets the requirement of reliability. See also the earlier case of Coy v. Iowa, 487 U.S. 1012 (1988).
Mandatory AIDS/STD Testing of Sex Offender
This would seem to be good public policy. See Article 21.31 CCP concerning the Texas approach to mandatory testing for AIDS/STD, which allows a judge to order such testing of a person charged with sexual assault or aggravated sexual assault. See also Article 46A.01 CCP which provides authority to order testing, including AIDS and HIV, of inmates confined in city (municipal) and county jails and to segregate those who test positive for AIDS or HIV. The United States Bureau of Justice Statistics' Survey on Sexual Violence (SSV) tells us that an estimated 60,000 prison inmates are sexually victimized each year. (1 -almost 90,000 if jail inmates are included) That's more than 4% of the country's prison population. The aggressors include other inmates and prison staff. (1) (2) (3) (4) (5) (6) Should society blink its eyes at the reality that many inmates of prisons are prey for non-consensual sexual assault? Some people in the general population seem to feel that sexual attack is simply one of the acceptable risks of incarceration. Some statistics suggest that one out of every five prison inmates are sexually assaulted during incarceration. We do know that in some prisons there is an elaborate inner society with its own political system and its own economy where inmates sell sex to other inmates for commissary items. In recent years there has been some recognition that society should protect its prisoners from sexual attack by other prisoners. See the federal Prison Rape Elimination Act of 2003. 18 U.S.C. 15601. California is the only state that I know of that has enacted legislation to deal with prison rape.
Underreporting - Incidence of Sexual Assault vis a vis Reported Sexual Assaults
Is there underreporting of sexual assault? According to most estimates, 80-90% of rapes are unreported. (1 - for statistics) We might look at Texas as an example. The September 2007 issue of the Texas Bar Journal in claimed that there are approximately 2 million sexual assault victims in Texas and that research shows only 20 percent of those victims report the assault to the proper authorities, and just 10 percent seek medical care. [One might wonder if any of the these statistics include the 14, 15, and 16 year-olds who are having consensual sexual relations with their boyfriends or girl friends who are teenagers 17 years of age and older. If these sexual assaults, where consent is not an element, are being counted, the numbers would seem more likely to be accurate.]
Why do victims fail to report sexual assault? In cases where the attack is forcible and the attacker is stranger or an acquaintance, likely causes for underreporting are self-blame ("It's my fault for engaging in behavior that got me in this predicament.""), shame (I just want to forget about what happened and move on. This would break by parents hearts or destroy my marriage."), stigma ("My family, friends and the general public would look down on me forever if this was ever publicized.") and fear ("The perpetrator may get revenge on me if I bring the police into this.").
Catholic Clergy and Sexual Assault of Children - Pedophile Priests (1) (2 -church responses) (3 -debate) Daddy taught us that morality was founded on doing what's right no matter what you're told. On the other hand, sometimes organized religion seems to be based on doing what you're told, no matter what's right. There are 1.1 billion Catholics. In recent years, portions of the hierarchy of the Catholic Church, which represents itself as Christ on earth, have been revealed to be corrupt or incompetent in covering up numerous instances of pedophilia among priests. In 2010, the sex abuse scandal reached Pope Benedict XVI: His former archdiocese disclosed that while he was archbishop a suspected pedophile priest was transferred to a job where he later abused children. The pontiff was also under increasing fire for a 2001 Vatican document he later penned instructing bishops to keep such cases secret. The problem of pedophile priests was widespread, ranging from Europe to the U.S. See the free VIDEO - Sex Crimes and the Vatican. News releases inform us that from 1950 to 2007 sexual abuse (most commonly with children - girls as well as boys - as victims) by Roman Catholic priests cost the U.S. church at least $2.3 billion in lawsuits. (1)(2)(3)(4)(5)(6) In 2007, the Catholic Church paid out $615,000,000 to settle child sexual abuse cases involving pedophiles who were members of the clergy. Examples from various archdioceses: San Diego, Ca. $198M (2007); Los Angeles, Ca. $660M (2007); Portland, Ore. $52M (2007); Spokane ,WA. $48M (2007); Sacramento, Ca $ 35M (2005); Tucson, Ariz. $22M (2005); Oakland, Ca. $ 56M (2005); Orange, Ca. $100M (2004); Covington, Ky. $84 M (2000); Boston, Mass. $84M (2003); Louisville, Ky. $25M (2003). California, Arizona, Kentucky, and Massachusetts seem to have suffered from a lopsided surfeit of pervert priests. Are more shoes waiting to be dropped in other states? There are some 9,000 Americans who are members of SNAP (the Survivors Network for those Abused by Priests). Is it sinful (if not criminal) for the church hierarchy, e.g., bishops, to protect pedophile priests by simply moving them from one diocese to another when the heat was on? Watch this excellent free VIDEO - Deliver Us From Evil (2006), a doumentary that recounts the career of pedophile Roman Catholic priest Oliver O'Grady as he was moved from parish to parish by the church hierarchy. Read about Father Marcial Maciel. Check out Bishop Accountability an organization that is collecting records re the Church's sex-abuse scandal. Would society stand for such systemic abuse in other areas of life, e.g., public schools? On the other hand, school teachers don't dress up in fancy uniforms ands hats with crosses around their necks. Try to find time to watch the VIDEO documentary Hand of God (2006) for an insight into this startling subject. Music Video Aside: Six of the current nine U.S. Supreme Court justices (Roberts, Alito, Kennedy, Thomas, Scalia & Sotomayor) profess to be members of the Catholic faith. [Note: However many holy words you say, what good do they do if you don't act upon them? I have a lot of respect for all the great prophets, but their fan clubs can sure be annoying, particularly the crew that requires its adherents pay, pray and obey, i.e., keep your pocket-book open and your mouth shut. Don't use condoms, even as a protection against AIDS in a country like South Africa where 1,000 die every day from HIV. Do you ever scratch your head and wonder whether species homo sapiens, with its brain three times the size of a chimp's, is the end product of the story or just a brief intermisson? Do you ever lie awake at 3:00 a.m. wondering if there is a dog? If so, you may run the proverbial risk of being diagnosed as a dyslexic, agnostic, and insomniac. Perhaps the best rule is the old mantra of the shipwrecked sailors in the lifeboat: Pray to God, but row for the shore.]
Chemical and Surgical Castration as Punishment
Registration of Convicted Sex Offenders
Megan's Law, in the form of sex offender registration that requires communities be warned of locations and descriptions of convicted sex offenders, have become part of the law of every state. See Federal Sex Offender Act of 1994, Adam Walsh Child Protection and Safety Act of 2006 (1), Texas Sex Offender Registration. The USSC has given its imprimatur to the sex registration laws, typically labeled "nonpunitive" by the enacting legislature. See Smith v. Doe, 538 U.S. 84 (2003) upholding a "nonpunitive" sex registration law and provisions for publication of information re the offenders on the Internet as not being governed by the Ex Post Facto Clause. The DOJ coordinates a National Sex Offender Public Web Site, a National/State Sex Offender Registry that will allow you to obtain the latest information from all 50 states, the District of Columbia and Puerto Rico. There is also a free national search web site that takes less time. In Texas, there is a fairly complex sex offender registration statute in Chapter 62 of the Code of Criminal Procedure. As a condition of parole, mandatory supervision, and community supervision, there is a provision for mandatory registration of sex offenders who have been convicted of reportable sex offenses. There is also a risk assessment review committee that determines the level of risk of a person subject to registration under Chapter 62. Registrants are required to give notice of change of address. Notice of high risk offender's residence shall be given to each residential address within a one mile radius. Registration at the state level is under the auspices of the Texas Department of Public Safety. The DPS maintains a web site where information concerning the registrant available as a matter of public information. It is an offense to fail to comply with the registration requirements. In addition to the government's right to keep track on convicted sex offender through registration, many jurisdictions (1) have enacted so-called "community self-defense laws" mandating government notice to communities of resident sex offenders believed to possess a high risk of recidivism. Notice can include the offender's name, address, offense, place of employment or schooling, and license plate number, along with a recent photo and physical description. One argument against such laws is that they create a climate of vigilantism. Another is that they cause such sex offenders to run from their family, avoid treatment, and seek anonymity by hiding out. Do such laws go too far in invading privacy of the sex offender who has paid his/her debt to society?
Sexual Assault/Rape as a Byproduct or Strategic Tactic of War
One knows by intuition and evidence that invading soldiers in the war theater sometimes sexually assault indigenous civilians. When the invading military officially condemns such activity, we can term the sexual assault as a byproduct of the war. Perhaps the offending soldiers will be officially reprimanded or tried in a military or civilian court for their sexual assault. But what if sexual assault is used as a military tactic to dishonor the population of the state being attacked, e.g, Sierra Leone, the Congo? What do we do if the soldiers are officially encouraged by their commanders to plant their semen in the indigenous female civilian population of the state being invaded? (1 - many news articles), (2 - rape of Albanian women by Serbs in Kosovo - 1999; 20 pp.), (3 - rape as a weapon of war), (4 - sexual assault in wartime ), (5 - sexual assault re the Nuremberg WWII War Crimes Tribunal).
OTHER CRIMES WITH SEXUALLY IMMORAL OVERTONES
The only unnatural sex act is the one you cannot perform.
During the early history of English common law, various modes of conduct with sexual overtones were condemned either by the common law or the church, i.e., the Church of Rome (Roman Catholic Church) or, after Henry VIII, the Church of England. In England, some offenses were within the jurisdiction of the common law courts and some were within the jurisdiction of the ecclesiastical courts of the church. (1) The ecclesiastical court of the church took jurisdiction of some of these acts on the ground that the type of conduct was considered so repugnant to the moral judgment of the community that it was the church's place to deal with them. (1) The offenses falling within the church's jurisdiction included such acts as defamation, slander, unseemly behavior in church, simony (paying for office or position in the church hierarchy) working or rowdy drinking on Sunday, neglecting to have children baptized, bearing a bastard, heresy, witchcraft and usury. For our purposes, it is important to note also that the ecclesiastical offenses also included certain private acts of immorality between consenting people, i.e., adultery, fornication, sodomy, and incest. Unlike public crimes that were punished under the adversarial system of common law courts, the ecclesiastical crimes were punished under the inquisitorial system of the ecclesiastical courts. Thus, for many years, until Parliament passed statutes making some of these immoral acts statutory crimes punishable in the royal courts, the common law judges did not deal with the so-called offenses against morality. I have listed some of theses offenses against morality below, indicating whether they were ecclesiastical or common law offenses. As we examine these offenses, it is appropriate to ask whether there is a common morality here in the USA. Does the American citizenry feel similarly on matters such as adultery, fornication, prostitution, gambling, lotteries, pornography, use of alcohol and other intoxicants, illicit sale and possession of drugs, medical marihuana, polygamy, etc? Are any of these modes of conduct morally wrong? If so, are there any of the immoral vices that should be the criminal law's business? Do you believe that a society disintegrates from within when we limit the power of the state to legislate morality by criminalizing human vice? Suppose that 80% of adults got blind drink every evening or spent all of their free time gambling and/or smoking methamphetamine, crystal or ice or injecting heroin. Does the preservation of society require enforcement of its morality? When a society substantially represses the lust for vice, is it reasonable to expect a backlash of a resurgent "sex, drugs and rock and roll"? See the discussion of Punishment in Silver Bullets I.
[Note: If you examine the MPC, e.g. Article 213 (Sexual Offenses), you will note that it does not penalize nonviolent uncommercialized sexual acts that might be considered as immoral by many persons, e.g., fornication, adultery, sodomy or other illicit consensual activity not involving imposition upon children, mental incompetents or other dependents. The MPC, Article 250 (Offenses Against Public Order and Decency) does punish open lewdness by which others are affronted or alarmed, see Section 251.1, professional prostitution, see Section 251.2, and commercialized obscenity, see Section 251.4. The MPC, Article 230 (Offenses Against the Family) also forbids bigamy and polygamy, see Section 230.1, and incest, see Section 230.2. As you look at the Texas law of crimes, you'll see that we also have chosen not to criminalize some conduct that might be considered immoral, e.g., fornication and adultery. Why do you think that is? Perhaps, because some of us, as well as those who pass and enforce our criminal law, have engaged in one or more forms of this conduct? Maybe more than once?]
Adultery (See Bigamy, Fornication, Polygamy below) Adultery in generally defined as "voluntary sexual intercourse between a married person and one who is not his or her spouse" (1) or "voluntary sexual intercourse between a married man and someone other than his wife or between a married woman and someone other than her husband" (1), (2) This web site provides one of the best condensed discussions of adultery on the Internet. In most states, both parties to the conduct are guilty of adultery. In a few states, when one party is married and the other isn't, only the married party is liable for adultery; in those states, if there is an anti-fornication statute, the unmarried party may be liable for fornication. Note that in the mid-nineties when one of the sexually sleaziest of our former Presidents (1 - Slick Willie at his best, telling a straight-faced lie) was receiving repeated oral sexual gratification from an intern on her knees in the White House, adultery was a crime in the District of Columbia; however, the conduct, that he eventually had to admit when his seminal fluid showed up on the intern's dress, did not include sexual intercourse; thus, it was not provable adultery. Adultery was not a common law crime unless the cohabitation was so open and notorious as to create a public scandal. A few anti-adultery statutes require that the adultery be an ongoing and notorious relationship or accompanied by cohabitation. (1) It doesn't disappoint us much when celebrities are outed as adulterers; its more disquieting when the peccadilloes, philandering and/or sexual indiscretions of "moral values" politicians are brought to the public eye. See, for example, former Speaker of the House Newt Gingrich whose moral denunciation of Clinton at a time when Gingrich was carrying on his own affair with a subordinate prompted Nobel Prize winning economist Paul Krugman to describe Gingrich as displaying "combinations of grandiosity and hypocrisy rare even among politicians," ex-governor Eliot Spitzer (1), and ex-senator, vice-presidential nominee and presidential candidate John Edwards (1 - Messr. Edwards prevaricates) (2 - Edwards indicted for soliciting campaign funds that were used to hide his affair), a charismatic man with a moving policy message who dishonored his terminally ill wife (1) and rendered himself a political joke. Based on reports, one might view Capitol Hill politicians as a herd of hypocritical males grazing on staffers, e.g., June of '09 ruminant self-confessed adulterer John Ensign, Republican Senator from Nevada and Pentecostalist member of the "Promise Keepers" (a group that claims to be "men of integrity" who preach marital fidelity); Ensign called for Clinton's resignation when the Lewinsky affair came to light; he was also among the harshest critics of Senator Larry Craig (1 - VIDEO) when the airport toilet scam surfaced (no pun intended). (1 & 2 - read the details re Messr. Ensign for yourself). See also Louisiana Senator David Vitter. (1 - VIDEO) South Carolina Governor Mark Sanford. Check out Strom Thurman, Gart Hart, Gary Condit, Mark Sanford, Arnold Schwarzenegger, etc. [POLITICAL TIP: The first law of adultery is - If you are going to commit it, do it with someone with as much to lose from its revelation as you!] [Based on the conduct of those who lead us, one might wonder if infants have as much fun in infancy as American adults seem to have in adultery. Have we moral Americans come to accept marital infidelity as the norm, except with our politicians and entertainers? Should marital vows of faithfulness be conditional? Does the pejorative French bromide have it right? "To commit adultery is so French; to get caught is so American!" Possible exception - IMF head Dominique Strauss-Kahn. History tells us that some of our best Presidents have had clandestine affairs, e.g., Thomas Jefferson, Franklin Roosevelt, Dwight Eisenhower. And on the other end of the competency scale, the most disastrous President in modern (maybe ever) times, George W. Bush, pretty clearly didn't evince a wandering eye, though he reportedly is a reformed alcoholic and a former coke user.] Though the clear trend is to decriminalize, e.g., California, Hawaii, Nevada, Oregon, Texas, etc., adultery is remains a statutory crime in some jurisdictions, e.g., in 2004, law professor Turley of George Washington University reported that twenty-four states still had criminal adultery statutes. (1) Law Professor Joanna Grossman of Hofstra stated in 2003 that more than twenty states had anti-adultery statutes. (1) Unlike fornication between two unmarried persons, the collateral consequences of adultery may involve more than two parties, in the sense that innocent spouses and families are more likely to suffer as a result of the offense. From the historical standpoint, in the early Middle Ages in Europe, a wife's infidelity was a capital offenses; if he wished, the husband was within his rights to kill the errant wife and her paramour (lover); in later common law years, the wife's adultery resulted in banishment to a convent. Fundamentalist Muslim countries punish adultery. Stoning to death is a possible punishment. (1) Here's the Catholic view of adultery. (1) Adultery is not a crime under the MPC or the TPC. As a matter of historical interest, notice that until 1974, Texas (my home state) had a law known as the "paramour statute," Article 1220 of the 1925 TPC, providing that a homicide was justifiable when committed by the husband on one taken in the act of adultery with the wife, provided that the killing took place before the parties to the act separated. See Sensobaugh v. State, 244 S.W. 379 (Tex. Crim. App. 1922) an assault case where the court declined to extend the right to kill the paramour to simple maiming and/or torturing, e.g., cutting of the paramour's penis with a straight razor; Burton v. State, 86 S.W.2d 768 (Tex. Crim App. 1935) where the court refused to extend the scope of the statute to compromising positions. The old Texas paramour statute cut only one way, i.e., the wife had no corresponding right to kill the husband's paramour. See Reed v. State, 59 S.W.2d 122 (Tex. Crim. App. 1933). One suspects in those days that, more often than not, one of the husband's shots would also errantly, see mistake of fact, kill the wife. Bigamy (See Adultery, Fornication, Polygamy) Someone said, "Bigamy is having one husband or wife too many. Monogamy is the same." Seriously, bigamy is viewed as conduct that undermines the traditional institution of marriage. Historically, bigamy was first made a statutory offense in England in 1604. (1) It was defined as contracting a second marriage during the existence of a prior marital relation or the marrying of more than one spouse at the same time. (1) No mens rea was required. The offense was one of strict liability. Nowadays, it's a statutory offense in all fifty states, a misdemeanor in approximately thirteen and a felony in the others. (1) Both bigamy and polygamy are crimes under Section 230.1 MPC. MPC bigamy is defined as follows: A married person is guilty of bigamy, a misdemeanor, if he contracts or purports to contract another marriage, unless at the time of the subsequent marriage: (a) the actor believes that the prior spouse is dead; or (b) the actor and the prior spouse have been living apart for five consecutive years throughout which the prior spouse was not known by the actor to be alive; or (c) a court has entered a judgment purporting to terminate or annul any prior disqualifying marriage, and the actor does not know that judgment to be invalid; or (d) the actor reasonably believes that he is legally eligible to remarry." MPC Section 230.1 (2) polygamy is a third degree felony defined as marrying or cohabiting with more than one spouse at a time in purported exercise of the right of plural marriage; the prohibition does not apply to parties to polygamous marriage, lawful in the country of which they are residents or nationals, while they are in transit through or temporarily visiting the state in question. Under MPC Section 230.1 (3), a person is guilty of bigamy or polygamy, as the case may be, if he contracts or purports to contract marriage with another knowing that the other is thereby committing bigamy or polygamy. Bigamy is a crime in Texas under Section 25.01 TPC. Notice that there is a mistake of law defense written into the Texas bigamy statute when the actor reasonably believes that his earlier marriage had been dissolved by divorce or annulment or death. Thus, Texas bigamy is not a strict liability offense. See Section 25.01(c) TPC. This is a classic different-law mistake as explained in the Dressler UCL hornbook. Notice also that the general mistake of law statute, Section 8.03 TPC is an affirmative defense; whereas, the bigamy provision is a defense, i.e., the burden of production is on the defense, but the burden of persuasion is on the government to prove beyond a reasonable doubt that the accused did not reasonably believe his/her earlier marriage had been dissolved by divorce or annulment or death. Fornication is typically defined as "voluntary sexual intercourse between two unmarried persons." (1), (2), (3), (4), (5) Fornication was not a common law crime unless there was open and notorious cohabitation. It is a statutory offense is some jurisdictions when illicit intercourse occurs between unmarried persons. A 2004 article indicated that ten states had anti-fornication statutes. (1) Fornication is not a crime under the MPC or TPC. In the case of Martin v. Ziherl, 607 S.E.2d 367 (Va. 2003) the Virginia Supreme Court struck down the state's anti-fornication statute on the ground that the statute violated the due process right of unmarried individuals to engage in intimate sexual contact. In support of its decision, the court cited Lawrence v. Texas, 539 U.S. 558 (2003). (1) One must wonder whether sex before marriage is anything new. Is it the norm in the U.S.? Is it morally wrong for people to live together and shag without benefit of clergy? Do you think a considerable number of Americans owe their existence to fornication? [Note: In Iran, the Islamic Code calls for 99 lashes for unmarried partners who engage in this sort of sexual dalliance. Of course, one man is entitled to have four wives. See One Man- Four Wives] There is no crime in the MPC prohibiting consensual deviate sexual intercourse, (defined in Article 213.0 (3) as "sexual intercourse per os or per annum between human beings who are not husband and wife...") between adults. For thirty years there was such a crime in Section 21.06 TPC; the offense was known as "homosexual conduct." In Lawrence v. Texas, 539 U.S. 558 (2003), the USSC struck down this Texas law holding that it violated the due process right of privacy and in the process overruling the earlier case of Bowers v. Hardwick, 478 U.S. 186 (1986). (1- Article) After Lawrence, it is now clear that states are not constitutionally free to criminalize consensual acts of sodomy between adults of the same or different sexes in private. [Note: In 2009, more than 50 percent of new HIV infections in the USA occurred among homosexuals. It appears that homosexuals are still on the wet end of the HIV spear. Do these chaps not get the point of safe sex? In 2010, eighty-five countries still had laws criminalizing same sex relations among adults, including seven that impose the death penalty for homosexual practices.] Described in graffiti as: "A Game the Whole Family Can Play," incest (1), (2) was originally an ecclesiastical crime, but has generally been made criminal by statute. In its broadest scope, incest is either marriage or sexual intercourse without marriage between persons related within the degrees in which the marriage is prohibited by law. From the historical perspective, in Greek tragedy, Oedipus was doomed to blindness and wandering because he had been sexually intimate with his mother, though unknowingly. Yet, a million years ago when primate hominids - ancestors of modern man - were roaming the earth in numbers of 500,000, can it be argued that incest was essential for the species to survive. As civilization advanced, so the possibilities of mixing of the gene pool increased. Certainly with advent of towns and the first cities 6000 years ago, incestuous relationships became less essential to species survival. In more recent times, one finds that the Bible refers to and appears to condone what we would describe as incestuous marriages. During the time of the ancient Egyptians, marrying out of the family was normal, but it was also common for brother and sister to marry. As the sage said: "Try everything in life once, except incest and folk-dancing." The third degree felony crime of incest is found in Section 230.2 MPC where it is defined as knowingly marrying or cohabiting with or having sexual intercourse with an ancestor or descendant, a brother or sister of the whole or half blood [or an uncle, aunt, nephew or niece of the whole blood]. In Texas, incest (called "prohibited sexual conduct") is criminalized in Section 25.02 TPC. Indecent exposure (1), (2) of the person in public is a common law nuisance, as is the utterance of profane language in such a manner as to annoy the public. At common law, a common or public nuisance occurred when the whole community was annoyed or inconvenienced by the offensive acts. Indecent exposure is found in Section 213.5 MPC. Indecent exposure to another adult is a crime under Section 21.08 TPC. Indecent exposure to a child or fondling a child's genitalia is a more serious crime, indecency with a child under Section 21.11 TPC.
There was a common law misdemeanor crime known as obscene libel; it was publishing a writing, book or picture of such an obscene nature as to shock the public sense of decency. (1), (2) The MPC punishes the misdemeanor offense of obscenity in Section 251.4. The MPC defines material as obscene if, considered as a whole, "its predominant appeal is to prurient interest, that is, a shameful or morbid interest, in nudity, sex or excretion, and if in addition is goes substantially beyond the customary limits of candor in describing or representing such matters. Predominant appeal shall be judged with reference to ordinary adults unless it appears from the character of the material or the circumstances of its dissemination to be designed for children or other specially susceptible audience. Undeveloped photographs, molds, printing plates, and the like, shall be deemed obscene notwithstanding that processing or other acts may be required to make the obscenity patent or to disseminate it." The obscenity crime is defined as occurring when a person knowingly or recklessly: (a) sells, delivers or provides, or offers or agrees to sell, deliver or provide, any obscene writing, picture, record or other representation or embodiment of the obscene; or (b) presents or directs an obscene play, dance or performance, or participates in that portion thereof which makes it obscene; or (c) publishes, exhibits or otherwise makes available any obscene material; or (d) possesses any obscene material for purposes of sale or other commercial dissemination; or (e) sells advertises or otherwise commercially disseminates material, whether or not obscene, by representing or suggesting that it is obscene. The MPC provides that a person who disseminates or possesses obscene material in the course of his business is presumed to do so knowingly or recklessly. Section 251.4 (3) provides that it is an affirmative defense to prosecution that dissemination was restricted to (a) institutions or persons having scientific, educational, governmental or other similar justification for possessing obscene material; or (b) non-commercial dissemination to personal associates of the actor. Texas also has a raft of crimes under TPC Sub-Chapter 43 - Obscenity. The crimes include obscene display and distribution, obscenity, sale, distribution or display of harmful material to a minor, sexual performance by a child, employment harmful to children, possession of child pornography, and Electronic Transmission of Certain Visual Material Depicting Minor (sexting). See Sections 43.21 - 43.26 TPC. See Texas obscenity statute discussed re the Reliable Consultants case striking down prohibition against sale and distribution of sex toys. Note that the 11th Circuit has upheld a statute similar to the one struck down in Reliable Consultants. See the USSC's Miller test of obscenity and Miller v. California, 413 US 15 (1973). Here are a few recent cases from the USSC: Ashcroft v. A.C.L.U., 542 U.S. 656 (2004); City of Erie v. Pap's A.M., 529 U.S. 277 (2000); Osborne v. Ohio, 495 U.S. 103 (1990); Also there are federal laws outlawing obscenity. For insight into how young males can become addicted to Internet porn, see the documentary Teens Hooked On Porn. Polygamy (See Adultery, Bigamy, and Fornication above) Polygamy means having multiple spouses at the same time. (1 - Webster), (2 - en carta), (3), (4), (5), (6 - "polygamous"), (7), (8), (9), (10), (11), (12), (13) Every civilized society has to make up its mind about polygamy and monogamy. In the United States we've decided that polygamy will be outlawed, usually by bigamy statutes. See Bigamy above. This decision is probably related to the predominantly Christian heritage of our country and the Christian idea of marriage. (1) Our society seems to believe that monogamy or serial monogamy (with the aid of divorce) is more socially beneficial than polygamy. In Christian marriages each partner to the marriage traditionally takes an oath to separate from the other partner only by death. Of course, American marriages are flimsy by nature. (1 - U.S. marriage laws), (2- divorce stats) Other societies, e.g., Islamic countries of Asia and Africa such as Afghanistan, Bangladesh, Egypt, Morocco, Uganda, take a different view of polygamy. (1 - Polygamy in Islam), (2 - Why does the Quran (Koran) allow Muslim men to have four wives?), (3), (4), (5). Some societies with secular government but a large Islamic population, e.g., Tunisia, Turkey, eschew polygamy. (VIDEO - Polygamy in Bountiful, Canada)(VIDEO - Iran - One Man Four Wives) Here in the states, Mormons have had to modify their beliefs with regard to practicing polygamy, e.g., See Reynolds v. United States, 98 U.S. 145 (1878), a USSC case (1) holding that religious duty (to have multiple wives at the same time) is not a defense to the crime of bigamy. Note that as late as 2007, Rodney Holm, a member of a Mormon sect convicted in Utah v. Holm of bigamy and unlawful sexual conduct with a minor, sought unsuccessfully to have his conviction overturned based on a right of privacy claim founded on the Lawrence v. Texas, 539 U. S. 558 (2003) which had held that private acts of sodomy between consenting adults is protected against government intrusion by the due process right to privacy. On February 25, 2007, the USSC declined to hear Holm's appeal. Marriage plays into the moral and legal prohibitions against adultery, bigamy, and fornication since marriage or the lack of it is an element of these crimes. See Adultery, Bigamy, and Fornication above. Most jurisdictions criminalize bigamy, e.g., Texas in Section 25.01 TPC criminalizes the act of bigamy when an individual who is legally married purports to marry or does marry a person other than his/her spouse in Texas or any other state or foreign country under circumstances that would, but for the actor's prior marriage, constitute a marriage. Only a few states put the prohibition against multiple marriages to different people at the same time in terms of polygamy. (1) In jurisdictions that recognize adultery and/or fornication as crimes, is it fair to ask whether these two offenses are used to leverage (coerce) monogamous marriage upon persons who desire to have legitimate sexual intercourse with a lover. Do these crimes reduce sexual promiscuity? Maybe not among adolescents. (1) Enjoying the pleasures of financially procured female companionship from women of mercenary virtue has occupied the time and interest of many million men over the eons. (1 - the wild west) Prostitution (1), (2) was not a common law crime, but the keeping of a bawdy house or a house of prostitution was a common law nuisance. Prostitution was defined as common lewdness of a woman for gain. Pandering (pimping) is the paid procurement of a woman for gain as an inmate of a house of prostitution. The procurer, arguably much more deserving of punishment than the prostitute, is known as the pimp. See People v. McRay, 416 N.E.2d 1015 (1980). Of course, males as well as females can be prostitutes. The MPC criminalizes prostitution in Section 251.2. In Texas, the crime of prostitution is covered in Sections 43.02-43.04 TPC. The Texas law is gender neutral. Prostitution is legal in some parts of the world, e.g., the Netherlands (Google "Sex, Drugs & Democracy" for an 87-minute documentary on the Holland experience.) and in certain parts of Nevada (not Las Vegas). From the standpoint of public policy, with the crime of prostitution, do we prefer to have relatively unenforced prohibitions that reflect what we wish were the case with a blind eye toward the real world? Would legalizing prostitution bring any advantages, e.g., government regulation, health tests, taxation of profits? On the other hand, aren't there certain aspects of prostitution (and pornography) that even the most jaded minds would agree must always be criminal, e.g., acts of either that involve children? For an insight into the very real problem of sex slaves, take an hour to watch the Frontline special Sex Slaves describing the global trade in women from the former Soviet Bloc. See also the federal statutes in Peonage, Slavery and Trafficking in Persons (18 USC Sections 1581-1595). (Video - Atlantic City Harlots) (Video - strumpets and pimps) (Video - Naional Geographic Documentary on Prostitution) Braebridge Hemyng, Prostitution in London (1861), Prostitution - National Geographic With disgraced ex-NY Governor Eliot Spitzer's (signed by CNN to host a roundtable talk show) forays into prostitution bubbling to the surface of the humiliation pond in 2008, we might look at the applicability of the federal Mann Act, 18 USC Sec. 2421 (wiki), and ask if it applies to Mr. Spitzer's conduct in facilitating Ashley Alexandra Dupre's (her stage name) travel from New York to Washington, D.C., to sexually service the politico who as NY Attorney General was outspoken in words and vicious in treatment against organized prostitution. See Bell v. United States, 349 U.S. 81 (1955); Cleveland v. United States, 329 U.S. 14 (1946); Gebardi v. United States, 287 U.S. 112 (1932); Caminetti v. Untied States, 242 U.S. 470 (1917). After bringing a well deserved bit of justice to the greedy den of Wall Street thieves, what a disappointment Client No. 9 of the Emperor's Club prostitution ring turned out to be. Mr. Spitzer, could have been a contender for even higher office if he had just viewed "libido" as an Italian pasta. [Note: The US Attorney for NY let Spitzer off the courtroom hook in early November 2008, announcing that no charges would be filed against the former NY Governor and Attorney General who broke up several prostitution rings during his days as a prosecutor fighting for truth, justice and the American way.] The mighty politicians are not the only ones getting unwanted publicity for their forays into prostitution. Did you ever think of Oklahoma City, the site of the infamous 1995 Oklahoma City bombing, as "a wretched hive of scum and villainy"? Maybe the Star Wars language is a bit over the top, but criminal justice student Brian Bates, a would be lawyer, has exposed it as a town where wide-open street prostitution appears to flourish. What do you think about the conduct of this self-styled "video vigilante" who spends his time videotaping the sexual encounters of "Johns" and street prostitutes. Of course, the vigilante sometimes has someone film him filming his targets, thus making himself not only the protagonist but the "star" of some shows. He posts the "best" of his "caught in-flagrante-delicto" tapes to Youtube. If you have no familiarity with the lives and conduct of street hookers, the vigilante's interviews are somewhat enlightening. Of course, if you have male relatives in Oklahoma City, watch with caution. To some of the families in the area, this chap is probably viewed as an urban hero; to the "Johns" he may appear as one of those pompous, self-aggrandizing cop-without-a-badge types who had restricted air flow in the birthing canal? What do you think about his effort? Seduction (1), (2) is a statutory crime committed by a man against a woman who he has induced to surrender her chastity by a promise of marriage or some other seductive act. The crime of seduction and the crime of corruption or minors is found in Section 213.3 (1)(d) MPC where it is defined as a male having sexual intercourse with a female not his wife where the female is induced to participate by a promise of marriage which the actor does not mean to perform. Seduction under the MPC does not require proof of prior chastity or that the victim be unmarried. Seduction was once a statutory crime in Texas, but is no longer an offense. Sodomy (1), (2) was not a crime according to common law, but was left to the ecclesiastical courts. Generally, sodomy is assumed to be part of the common law of the U.S.. The concept of sodomy includes bestiality and buggery. Bestiality (1), (2) is carnal copulation with a beast. Roughly half the states prohibit it; some states treat it as a felony while others treat it as a misdemeanor. Buggery (1) is copulation per anum, i.e., anal intercourse, sometimes expanded by statute to includes cases where the act is per os (oral). The Texas definition of sexual assault, Section 22.011, and aggravated sexual assault, Section 22.021 TPC, includes penetration of the anus or sexual organ by any means, penetration of the mouth by the sexual organ of another and causing the sexual organ to contact or penetrate the mouth, anus, or sexual organ of another person. Bestiality with animals or fowls in public or in places where people might be likely to observe the act is considered public lewdness under Section 21.07 TPC. Fondling and exposure to a child is a crime under Section 21.11 TPC indecency with a child. Section 251.1 MPC makes open lewdness a crime. Under MPC Section 213.0 (3) any form of sexual intercourse with an animal is defined as deviate sexual intercourse; yet the definition of the crime of deviate sexual intercourse does not appear to include animals. In 2003, the USSC held that the due process right to privacy protects consenting adults of either sex from prosecutions for acts of sodomy committed in private. See Lawrence v. Texas, 539 U.S. 558 (2003) which discusses the history of sodomy. See Homosexual Conduct above.
(Dateline Texas - Some years ago in my hometown. Wouldn't you know it!)
Unbridled Passion Leads to Sentence
A man caught having sex with a horse has been sentenced to 10 years probation and fined
$10,000 for trying to kills its owner during a gun battle in which the female horse was killed.
____ Jackson , 41, was sentenced Thursday by a jury in State District
Judge Ted Poe's court that had convicted him of attempted murder.
Jackson was also sentenced to 120 days in prison, 20 hours per month community service, and
to restitution of about $9000. He will also be required to attend a Baylor College of Medicine
program for sexual offenders.
Prosecutor Joan Campbell said John Richardson went to a small horse barn at King and Sayer
on Jan. 26 to feed his horses and saw Jackson standing on a bucket behind the horse.
Jackson, nude from the waist down, was having sex with the horse, Campbell said. When he saw
Richardson, she said, Jackson grabbed his gun from a horse trough and fired at Richardson.
The prosecutor said Richardson, who had a gun with only two bullets, fired at Jackson,
then tried to run away but was shot in the buttocks.
Richardson, 42, underwent surgery for his wounds, and more is scheduled.
It was not determined who killed the horse.
I'm including a brief reference to stalking (1), (2) in this page of sex crimes because I view it in most cases, not all, as really a form of sexual harassment designed to instill fear in the victim. It could just as easily be an appurtenance to the discussion of attempt in Silver Bullets III or assault and battery in Silver Bullets VI. Indeed , it is akin to an assault as intentional frightening, but extends beyond a single occasion. About stalking, some wag facetiously said "When it works, it's called courtship. When it doesn't, it's called harassment." Another version says "When it works, it's called a wedding, and the bride's picture is in the paper; when it doesn't work, it's called an indictment, and the stalker's picture is on a police rap sheet." Either way the game is not worth the candle. Webster's defines stalking as "the act or crime of willfully and repeatedly following or harassing another person in circumstances that would cause a reasonable person to fear injury or death esp. because of express or implied threats; broadly : a crime of engaging in a course of conduct directed at a person that serves no legitimate purpose and seriously alarms, annoys, or intimidates that person." Stalking is often considered to be aggravated when the conduct involved also violates a restraining order protecting the victim. (1 - stalking defined), (2- defined), (3 - types). Stalking came to the fore in the early 1990's, in part as a result of the earlier 1982 broad daylight knife attack on film actress Theresa Saldana in which she suffered ten stab wounds to the torso and the subsequent 1989 murder of TV star Rebecca Schaeffer, both attacks being at the hands so-called "celebrity stalkers." Although stalking of celebrities stills draws media attention, e.g. Dave Letterman, etc., it constitutes a minor portion of the total stalking statistics. (1 - DOJ report) With the dawn of the computer age, we encounter a new variant of stalking known as cyberstalking. (1) , (2 - list of states with cybercrime statutes).
Common Law - The crime of stalking was not recognized by the common law.
MPC -The Model Penal Code came to us in its official draft form in1962, well before the practice of stalking gained notoriety. Hence, the MPC does not punish the act of stalking as we know it today.
TPC Stalking -Texas punishes stalking in Section 42.072 TPC. The Texas stalking statute reads as follows:
(a) A person commits an offense if the person, on more than one occasion and pursuant to the same scheme or course of conduct that is directed specifically at another person, knowingly engages in conduct, including following the other person, that:
(1) the actor knows or reasonably believes the other person will regard as threatening: (A) bodily injury or death for the other person; (B) bodily injury or death for a member of the other person's family or household; or (C) that an offense will be committed against the other person's property;
(2) causes the other person or a member of the other person's family or household to be placed in fear of bodily injury or death or fear that an offense will be committed against the other person's property; and (3) would cause a reasonable person to fear: (A) bodily injury or death for himself or herself; (B) bodily injury or death for a member of the person's family or household; or (C) that an offense will be committed against the person's property.
(b) An offense under this section is a felony of the third degree, except that the offense is a felony of the second degree if the actor has previously been convicted under this section.
(c) In this section, "family," "household," and "member of a household" have the meanings assigned by Chapter 71, Family Code. When we consider the stalking offense, we see that it reflects lawmakers desire to prevent potentially dangerous preparatory conduct that may fall short of a traditional criminal attempt. As you look as a stalking statute, ask yourself if it requires a substantial amount of conduct indicative of potential danger or harassment. Remember that under Section 1.07(42) TPC a reasonable belief in Texas is a "belief that would be held by an ordinary and prudent man in the same circumstances as the actor." It would seem that the defendant accused of stalking in Texas would only have to be negligent with regard to whether the other person would regard the actor's conduct as threatening either bodily injury or an offense to the other person's property. [Note that an earlier version of this Texas stalking statute was struck down as void for vagueness in Long v. State, 931 S.W.2d 285 (Tex. Crim. App. 1996).] Federal Stalking - The federal laws against stalking are found at Domestic Violence and Stalking. (18 USC Sections 2261-2266). 18 USC Section 2261A. defines the federal crime of stalking thusly:
(1) travels in interstate or foreign commerce or within the special maritime and territorial jurisdiction of the United States, or enters or leaves Indian country, with the intent to kill, injure, harass, or place under surveillance with intent to kill, injure, harass, or intimidate another person, and in the course of, or as a result of, such travel places that person in reasonable fear of the death of, or serious bodily injury to, or causes substantial emotional distress to that person, a member of the immediate family (as defined in section 115) of that person, or the spouse or intimate partner of that person; or
(2) with the intent—
(A) to kill, injure, harass, or place under surveillance with intent to kill, injure, harass, or intimidate, or cause substantial emotional distress to a person in another State or tribal jurisdiction or within the special maritime and territorial jurisdiction of the United States; or
(B) to place a person in another State or tribal jurisdiction, or within the special maritime and territorial jurisdiction of the United States, in reasonable fear of the death of, or serious bodily injury to—
(i) that person;
(ii) a member of the immediate family (as defined in section 115  of that person; or
(iii) a spouse or intimate partner of that person;
uses the mail, any interactive computer service, or any facility of interstate or foreign commerce to engage in a course of conduct that causes substantial emotional distress to that person or places that person in reasonable fear of the death of, or serious bodily injury to, any of the persons described in clauses (i) through (iii) of subparagraph (B);
 shall be punished as provided in section 2261 (b) of this title.
Voyeurism (1 - medical definition of the disorder) is related to stalking. "It involves the act of observing unsuspecting individuals, usually strangers, who may be naked or in the process of disrobing. Even engaging in sexual activity. Masturbation usually occurs during, or shortly after, voyeuristic activities." (1) Here's a 173-page collection of Voyeurism Statutes from all the states.
- Sex Crimes Web Sites: The Rape Abuse and Incest National Network (RAINN) - This site contains useful information, e.g., key federal laws, statistics, definitions, etc.;Aequitas -The Prosecutor's Resource on Violence Against Women has several pdf articles, e.g., prosecutor's voir dire in sex crimes; ABA Commission on Domestic Violence; The National Center for Men - This is a disappointingly unimpressive site that seeks contributions before yielding any information; from the looks of the web site, it could be a one-man operation. YouTube generally does not make depictions of sexual assault available to the casual web surfer (1 - this is about the closest you get); you must be registered as a YouTube member to view such visual images; NY Times index re sex crimes. Sex and the Law - Wiki
- Films: The Accused (1), an excellent movie, contains a graphic scene depicting a barroom rape where bystanders who hooted and hollered as the trailer-park trashy victim, Sarah Tobias (Jodie Foster in a Best Actress role), was serially raped, are held vicariously liable as aiders and abettors (accomplices) See complicity in Silver Bullets III. If you are too young to have seen this vintage 1988 film, it's worth renting and viewing through your "lawyer's eye." For historical purposes here's a 1935 B-grade film dubbed "Sex Madness" centering on the heroine's giving her boyfriend syphilis; such films were considered risque for their time but were marketed as supporting preventive health - one of those movies that is so bad, it's almost worth watching.
- State Anti-Sexual Violence Coalitions: (1)
- Teaching Rape in The Classroom: Raising the subject of sexual assault in the law school classroom risks touching some sensitive memories. Why? Because in almost every class some of us have been victims of sex crimes as children and/or as adults. See Bloch, Kate, A Rape Law Pedagogy, 7 Yale Journal of Law & Feminism (1995): Estrich, Susan, Teaching Rape Law ,102 Yale Law Review 509 (1992). See also Estrich, Susan, Real Rape, Harvard University Press, Cambridge, Mass. (1987). Old school casebooks, e.g., Philip Johnson's otherwise excellent Criminal Law, left it out: millennial casebooks devote substantial space to sexual assault.
- Rape Reporting: (1), (2), (3)
- Sexual Assault on Campus: (1)
- Rape Victimization: (1 - 46 pp)
- Prosecuting Crimes Against Women: The National Center for the Prosecution of Violence Against Women has made these useful manuals available for free downloading: Introducing Expert Testimony to Explain Victim Behaviour in Sexual and Domestic Violence Prosecutions (92 pp); Prosecuting Alcohol Facilitated Sexual Assault (76 pp); Role of the Sexual Assault Nurse Examiner in the Prosecution of Domestic Violence Prosecutions (46 pp); Victim Responses to Sexual Assault: Counterintuitive or Simply Adaptive? (36 pp). All of these manuals may be found and downloaded from (1 - American Prosecutors Research Institute). Re violence toward women, see the 17 online articles from the Center's newsletter The Voice ranging from 2004-2009.
- Date Rape Drugs Utilized in Drug Assisted Assault and Acquaintance Rape: Rohypnol (Pharmaceutical name: flunitrazepam; Street name: roofies -1) and GHB (Pharmaceutical name: gamma hydroxybutyric acid) : (1), (2), (3).
- The Art of Seduction Roman Style: Glorification of the art of seduction begins as early as the verses of the Augustan poet Ovid (Publius Ovidius Nano 43 B.C.- 17 A.D.), the "Professor of Love," in Ars Amatoria, The Art of Love, (1) a three-part book published about 2 B.C. The first two parts of The Art of Love are a man's guidebook of seduction, including tips, tricks, and tactics for males on the prowl for sexual liaisons with females. The third part of the book is written for women. The book celebrates extramarital sex and is one reason Ovid was banished by Caesar Augustus. See the quote at the beginning of this web page. Have current male attitudes changed dramatically from Ovid's time? Are American males still taught by their society and encouraged to be on the make?
- Texas Federal Judge's 2009 Plea of Guilty to Obstruction of Justice and "Retirement": Longtime Galveston Division Federal Judge Samuel Kent's plea kept the residents of the Houston - Galveston area from hearing details in a first of its kind trial of a federal judge for sexually abusing employees; a federal gag order limited the amount of information disclosed prior to the trial that Judge Kent avoided by the cop out. This case, shepherded by famed defender Dick DeGuerin, seemed to fly under the radar. Kent wound up in Club Fed for a 33-month stay.
- Policy Question: What do you think about the government regulating morality, e.g., prostitution, drugs, gambling, pornography? Here's an interesting take on the war on drugs (1). The Internet is replete with pornography, much of it free with unrestricted access. (Type "porn," "free porn," or "sex," and notice how many hardcore web sites pop up. The fact that young kids can access this material. As Mark Twain said, "It has always been a peculiarity of the human race that it keeps two sets of morals in stock - the private and the real and the public and artificial.") Obscenity is not protected by the First Amendment, See Roth v. United States, 354 U.S. 476 (1957). Federal laws prohibit distribution of obscenity through interstate or foreign commerce. Revenues from Internet porn are roughly +$3 billion per year. Little action is taken against adult pornography. Should the DOJ exercise its prosecutorial discretion not to go after adult pornographers? Note: The Child Online Protection Act of 1998 was declared overly broad as to free speech and unconstitutional in 2004. See Ashcroft v. ACLU, 540 U.S. 656 (2004).