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November 2, 2010

Proposed Oliwood rape statute from Senators Coleman, Pullen and Silverblatt (and now ... others)

Reprinted below is the full text of a proposed new rape law drafted by Senators Coleman, Pullen and Silverblatt.  This is the first (and so far only) proposal that has been submitted to me in advance of the Oliwood legislative session scheduled to take place this afternoon at 1:30pm.

Oliwood Rape Statute

213.0 Definitions

  1. “Sexual conduct” means vaginal intercourse, anal intercourse, fellatio, and cunnilingus between persons regardless of sex; and, without privilege to do so, the insertion, however slight, of any part of the body into the vaginal, anal, or oral opening of another; or the insertion, however slight, of any instrument, apparatus, or other object into the vaginal or anal opening of the other.
  2. “Non-consent” means any verbal or nonverbal indication given by the victim that would lead a reasonable person to believe that the victim does not consent to the engagement of sexual conduct with the offender.

 213.1 Rape

 A person who engages in sexual conduct with any other person is guilty of rape if:

  1. the other person expresses non-consent at any time during or immediately prior to the sexual conduct; or
  2. the other person is under 11 years old, and the offender is more than 3 years older than the      other person, whether or not the offender knows the age of the other person; or
  3. the offender knows or has reasonable cause to believe that the other person’s ability to resist or consent is substantially impaired because of a mental or physical condition, age, or level of consciousness; or
  4. for the purpose of preventing resistance, the offender purposefully and substantially impairs the other person’s judgment or control by administering any drug, intoxicant, or controlled substance to the other person surreptitiously or by force, threat of force, or deception; or
  5. the actor knowingly compels the other person by force or threat of force, including but not limited to: threat of death, bodily injury, pain or kidnapping, to be inflicted on anyone

Whoever violates this section is guilty of rape, a felony in the first degree. The prison term to be imposed upon the offender under this section shall be one of the prison terms prescribed in the Model Penal Code Section 6.06(1)

6.06 Sentence of Imprisonment for Felony; Ordinary Terms: A person who has been convicted of a felony may be sentenced to imprisonment, as follows: (1) in the case of a felony of the first degree, for a term the minimum of which shall be fixed by the Court at not less than one year nor more than ten years, and the maximum at not more than twenty years or at life imprisonment...

UPDATEAs the Speaker soundly suggested, all of the drafters of proposed legislation are urged to add the text of their proposals to the comments (as it appears one group already has done). 

November 2, 2010 in Course materials and schedule | Permalink


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Rape Statute proposed by Senators Green, Heithaus, and Ladan:

§ 213.1 - Rape
1. A person is guilty of rape when he or she engages in unwanted sexual intercourse with a complainant:
a. By force or violence to the complainant that would prevent resistance by a person of reasonable resolution, or
b. By fear of immediate and unlawful bodily injury that would prevent resistance by a person of reasonable resolution, or
c. When the perpetrator knows that the other person suffers from a mental disease or defect which renders him/her incapable of appraising the nature of the conduct at the time of the act and uses this to engage in sexual conduct with that person

2. A person is guilty of rape when he or she engages in sexual intercourse with a complainant:
a. Who is unconscious, or
b. When the perpetrator knows that the complainant is unaware that the sexual intercourse is occurring , and
c. The complainant would not have consented to the act had they been aware

Whoever violates this section is guilty of a felony in the first degree, and is punishable under the terms of MPC § 6.06(1).

Posted by: Andrea Green | Nov 2, 2010 3:03:45 PM

Shawna Yoffe, Alex Kalter, and Brandon Frank

(1) Rape [A felony of the first degree]. A person negligently engaging or forcing any other person(s) to engage in sexual conduct involving the penetration of any body part or instrument into any orifice of another person is guilty of rape if:
a. The non-consenting victim is compelled to submit by force or by a reasonable apprehension of imminent death, serious bodily injury, extreme pain, or kidnapping, to
be inflicted on anyone; or
b. Victim is unable to consent because:
i. Victim is 12 years of age or younger; or
ii. Victim lacks the mental capacity to consent; or
iii. Victim is unconscious; or
iv. Victim reasonably believes that his/her partner is someone whom he/she already knows, victim consents to the sexual conduct due to defendant’s fraudulent misrepresentation, but the partner is not the consented-to partner, and the victim would not have consented to the actual sexual partner[s]; or
v. Victim’s power to appraise or control his/her conduct has been substantially impaired by drugs, intoxicants, or other means by force or without his/her knowledge.
1. An affirmative defense to part b(v) is that he/she had no knowledge of the victim’s impaired ability to consent.

Posted by: Brandon Frank | Nov 2, 2010 5:25:46 PM

Having thought more about the statutes I think that I voted for the wrong one. I originally voted for statute 3. I thought at the time statute 3 was the best because it encompassed the notion of sexual autonomy, and it seems that our respect for sexual autonomy is the whole reason we enact rape legislation in the first place - however after more consideration I think that statute 2 is more practical for an actual rape statute framework. While 3 seems to cover most of my philosophical concerns about what a rape really is, it has the same issues that most philosophical theories have. It contains words like "sexual autonomy" - which for legal purposes is almost impossible to define in any meaningful way.

Statute 2 seems to be much more clear, concise, and conservative. I do think there are some things with statute 2 that could be changed to make it better such as removing the part about mental defects. Changing it to say:

"When the perpetrator knows that the other person is incapable of appraising the nature of the conduct at the time of the act and uses this to engage in sexual conduct with that person"

I think that this would then include children without setting an arbitrary age limit.

Posted by: Sara Smith | Nov 3, 2010 9:07:45 AM

I also voted for 3 because I was pulled in by "sexual autonomy" but when I think about it, it is impractical. Also, weren't they supposed to ONLY talk about the worst kind of rape...I feel they should have not been allowed to include the other stuff that gave them an advantage over the other teams.
Bottom line: I change my vote to group 1. They were the most clear, covered the most bases, and didn't have as many problems as everyone else.

Posted by: I'll Never Tell | Nov 3, 2010 9:20:50 AM


Rather gruesome details, and this is a little early but this article seems to include an interesting mixture of aspects of homicide and also discusses the "battered woman syndrome" that is in our reading for defenses. Between her first-degree murder conviction, possible extreme emotion disturbance and related mens rea issues, and defenses, I thought it was interesting to find a recent, real-life example that combined a few of our class concepts.

Posted by: Mallika Reddy | Nov 3, 2010 7:41:54 PM

I agree with Sara and the person who shall not be named regarding my legislative decision. I also voted for the third statue because I thought that it most succinctly encompassed the factors I consider to be most imperative to effective rape legislation. However, in hindsight, I believe that I was immediately drawn to that statute because of the discussion of sexual autonomy and the fact that they also outlined the other levels of sexual offenses punishable under criminal law.

While immediately drawn to the discussion of sexual autonomy, I believe that its definition is too broad to appropriately the conduct required to be guilty of rape. As was adequately brought up in class, sexual autonomy is not only the right to keep others from violating our own bodies, but it is also a right for us to express our own sexuality. In other words, sexual autonomy is not only a defense against others, but is also a privilege to act. This is why I think that the term is so difficult to define in relation to sexual offenses, and therefore should be omitted from the statutory language of group 3's proposal.

After having the opportunity to look more closely at the statutes presented, I now believe that group 2 had the statute best suited to become an appropriate mold for future Oliwood rape legislation. I am especially drawn to the categorization of wanted and unwanted sexual intercourse and the factors that fall under each category.

However, I do have to disagree with Sara's idea that instead of determining an minimum age limit for sexual intercourse, the court should just look to whether the person is capable of determining the nature of their conduct.I believe that there should be an age limit, no matter how arbitrary because it should not be up to the jury to determine whether the child was of age to determine the nature of the sexual conduct. I also think that it would lead to inconsistent verdicts. (For instance, if a 13 y.o. has the mental/emotional maturity of a 17 y.o., would it be appropriate for a 20 y.o. to have sex with the the 13 y.o. without any legal repercussions?) Additionally, by removing the part of the statute regarding mental defects, the statute would effectively be limiting the rights of the mentally retarded to participate in sexual activities.

Posted by: Paia LaPalombara | Nov 4, 2010 7:24:56 PM

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