c
c

c


 

 Common law (majority) Common law (minority)

AR (victim) Man or woman Man or woman

AR (force) Physical force or threat of force Force not required

No rape when: î MTS, NJ ± act of sex is enough
î Alston, NC ± !threat in future î Barnes, CA ± no resistance
î Thompson, MT ± !no graduation
î Mlinarich, PA ± !back to foster care

AR (resistance) Non-consent manifested by reasonable No affirmative consent (!expressed yes)

resistance (expressed no) î MTS, NJ
î Warren, IL ± !carry V into woods
AR (defective consent) 1) Too young OR Mental incapacity
2) Intoxicated ± no reasonable judgment (Giardino, Ca); BAC > .15 (Al-Hamdani, Wa)
MR options GI = common law
R = AK (proof of R since no resistance requirement)
SL = MA, PA, ME (prosecution must prove force, force != consent)
N (+) = common law, but no force (honest but reasonable mistake of fact ok)
Corroboration Common law = sufficient evidence to conclude victim¶s account not a fabrication
(Wiley, DC Cir) ± fear of fabrication, hard to defend v rape, racism, jury sympathy
Modern = no corroboration (Sheppard, DC Cir)
Rape shield Common law = introduce victim¶s sexual history
Modern approach = Fed. R. Evid 412 prevents sexual history or predisposition
î Ok to use history to attempt to show bias if part of defense (DeLawder, MD)
î Ok to use history to impeach credibility (Harris, MA)
î Not Ok to force psychological exam (Scuito, 3d Cir)
MPC 213.1 Rape by purposely, knowingly, or recklessly having sexual intercourse with a female if
she is less than 10 years old, unconscious, compelled by force or threat of death,
grievous bodily harm,e xtreme pain or kidnapping; or the defendant intoxicates the
victim.

: Unlawful sexual intercourse with a female without her consent by
force fear or fraud
@? I c : Only needs to be sexual penetration. MPC recognizes anal
penetration.
@? A CL and MPC 213.1 husband cannot be guilty of raping his wife.
@? ^
c Lack of consent will be found only if the woman used words or
acts that would make it clear to a reasonable person in the man¶s position that the
woman was not consenting.
? Defendant generally guilty unless he honestly and reasonably believes his
victim has consented
? If a person is drunk, drugged, unconscious or underage they lack the legal
capacity to consent = defective consent.
? Fraud: Consent gained by fraud is non-consent
 ? Is Consent a state of mind or an action?
Ë? Rusk ± both
Ë? MTS ± affirmative permission
Ë? State v. Gangahar ± consent genuine and real so as to reaosnalbly
make known, allows that no doesn¶t mean no
Ë? Giardino ± intoxication can invalidate consent if was unable to
make reasonable judgment and would not have engaged if not
under influence
@? 0  c  
? Prosecutors typically encourage the jury to evaluate the defendant¶s
threats from the victim¶s perspective
Ë? Blocking exits may meet requirements ± State v. Rusk
Ë? Force: in some districts can be satisfied by act of penetration if it
was unwanted, or it can be seen as only what is necessary to
overcome resistance.
Ë? Threat of Force: A threat to commit imminent serious bodily harm
can be a substitute for actual physical force.
@? MPC says 213.1 threat of extreme pain o kidnapping to the
victim or someone she knows
Ë? Implied Threat/nonimminent threats such as future occasion or
duress cannot fulfill the force.
@? 
c Traditionally rape did not exist unless the woman physically resisted
but now do not require utmost resistance.
? Reasonable Resistance: Reasonable under the circumstances
? Freezing: split between states as to whether so scared that they freeze can
be rape
? Force Requirement Eliminated: some states have eliminated and make
non-consensual intercourse a crime (lesser degree than if w/ force)
@?   having sex with a person below a states age of consent.
? Strict Liability offense and reasonable mistake is usually not a defense.
? MPC allows for reasonable mistake defenses 213.6; this defense is
allowed as long as the victim is not below the age of 10.
— 
@? 
@? Mistake as to consent: There are different standards
? Mistkae no defense: most districts do not recognize this defense bcause it
is general intent and only require that the D voluntarily committed the
action
? Negligence standard: Few states allow mistake to negate the MR for rape,
but it has to be reasonable and non-negligent because if there is a bona
fide belief of consent then there can be no force or threat 
@? Massachusetts v. Simcock: Even reasonable MOF would not be a defense
@? Commonwealth v.Lopez: MR = SL 
@? Commonwealth v. A subjective belief that the victim has consented is no
defense to a charge of rape. 

 
 @? Prejudical effect outweighs probative value 
@? Past Sexual History Acceptable when: 
? prior sexual conduct with the defendant for consent
? source of injuries or semen ± woman¶s other sexual acts are admissible
? other sexual conduct to prove allegations are being used to hide a sexual
affair with another person 
@? State v. De Lawder ± exception to Rape Shield
? wasn¶t allowed to bring up that she had told Delawder she was pregnant
and couldn¶t tell her mother and was afraid to tell her mother she
voluntarily had sexual intercourse with others 
@? Can¶t require psychological testing ± Scuito
@? Commonwealth v. Harris ± defendant wants to introduce fact that victim has been
prositute, hard to get convictions for rape for prostitutes. 
State v. Rusk:
@? Force is necessary part of the crime ± force to overcome resistance or resisting by
threats to her safety
@? Majority thinks no resistance, so if no resistance than can¶t eb a force case
because the force is force to overcome resistance
State in the Interest of MTS: new standard lack of consent can be nonconsent
@? Permission must be affirmative and freely given.
@? A person who commits an act of sexual penetration using physical force or
coercion is guilty of 2nd degree sexual assault. The acor uses physiacal force or
cocercion, but tehv ictim does not sustain severe physical injury.

eople v. Warren: (IL)

@? Missing force because carried her to woods
@? Victim must communicate lack of consent in objective manner
State v. Thompson
@? Threat must be imminent
@? Threat to not graduate is in future
Vommonwealth v. Mlinarich:
@? threatened tos end back to detention home
@? No physical force or violence
Vommonwealth v. Sherry
@? Three doctors and victim was a nurse.
@? IN rape cases, victim does not have to phsycially struggle with the rapist in order
to showlack of consent.
@?
 u
u 
u  
R Common law MPC
AR Proximity test (Rizzo, NY) Two part test:
Unequivocality test (Miller, CA) 1) Act or omission constituting a
Two part test: 1) substantial step 2) substantial step that is [5.01(1)]
corroborative of criminal purpose 2) Strongly corroborative of criminal
î driving by bank w/guns (Jackson, 2d) purpose [5.01(2)]
î ! meeting for drug deal (Joyce, 8th) Substantive steps enumerated [5.01(2)(a)]
MR (conduct or result) Incomplete conduct: Specific intent Purpose (P) of causing or belief (K) act or
î Smallwood, Md ± !rape w/ HIV omission will cause offense [5.01(1)(b)]
î Thacker, VA - !shooting at tent
î Gray - !felony murder
î Holbron - !involuntary manslaughter
Infer intent if act likely to lead to its
commission
î Raines, Md ± point gun at head, fire
î Thomas, Co ± shoot at fleeing rapist
(BUT attempted reckless manslaughter?)
MR (circumstance) Same MR as completed crime Same MR as completed crime
Same mistake of fact as completed crime
Impossibility defense No factual impossibility (D¶s act, if No defense if D¶s act, under
consummated, would be a crime) circumstances D believed them to be,
Legal impossibility would be substantial step [5.01(1)(c)]
(-) Yes (Jaffe, NY; Berrigan, NY)
(+) No (Rojas, CA; Dlugash, NY)
Abandonment(Defense) (+) No abandonment defense (Robins, WI) Abandonment if not motivated by
circumstances affecting success [5.01(4)]
Solicitation Attempt w/o communication is also a
substantial step [5.01(3)]

Substantive crimes of preparation:

1)? Burglary ± breaking and entering w/intent to commit a felony (GI)
2)? Assault ± attempted battery, MAY be w/intent to X (wound, kill, rape, etc) (SI)
3)? Possession ± proxy for intent (AR = to possess; MR = K)
4)? Stalking ± conduct that alarms, annoys, or torments victim as measured on a
reasonable person standard

Rc 
 
c
 
@? Even if they do not complete the commission can be convicted of separate
substantvive crime. With Three Elements:
? Must have the intent to do acts which if they had been carried out, would
have resulted in the commission of the crime
? Thoughts won¶t suffice ± must commit an act in furtherance of the crime
 ? Imposisbility defense usually fails
a 
@? º  

 cc

c

? Old standard was c which said the D had to commit hthe last
act which was in his power
? This was replaced by the   

 ccca which
is the standard
Ë? Says that    
 may or may not be enough to be an
overt act. It¶s a question of degree and if the preparations come
near to the accomplishment then it is a creim, on the other hand
plans to rob someone is not enough if you can¶t find them.
eople
v. Rizzo
Ë? u
 !aIf the D¶s plan requires actions by a
3rd party that has not taken place yet then there is no attempt yet
@? Modern courts reject
@? 
c

 Mere soliticatio is not enough, so if all the D
has done was try to convince another person to commit a
crime, he has not commited an attempt crime
@? "# Davis: ³Mere solitication unaccompanied by an
act moving directly torward th commission of the intended
crime is not an overt act constituting an element of the
crime of attemptl. Solicitation of itself is a distinct offense
when declared so by law.
@? A"#  c giving weapon, work schedule, plane
tickets, etc was a substantial step
@?
!$
"c
 How clear it is from the act that the D indeed intended to
unequivocally (without a doubt) commit the crime.
? This view cannot take into consideration confessions, but must prove the
D¶s criminal purpose of attempt by overt not words
? Criticized because there is no act that is completely unequivocal.
@?  —R c Which is a blend of the first two
? Substantial Step Test 5.01: Says that conduct meets the requirement under
the Code if, under circumstances as the D believes htem to be, there
occurs and act or omission constituting a substantial step in a course of
conduct planned to culminate in commission of the crime, but the conduct
msut be strongly corroborative of the criminal purpose. 
? This test blends proximity by saing substantial step, evne though close
proximity is not a requirement and it belnds equivocal test by saying
strongly corroborative 
? Examples 5.01 (2)(a-g)
Ë? Important is soliciting an innocent agent to engage in conduct
constituting an element of a crime, but this only applies when the
agent doesn¶t know that what he is doing is a crime then you have
attempted solicitaiton. 
 ? Misrepresentation: Any crimes of misrepresentation are guilty of attempt
if the D has done what he believes to be necessary to make the
communication or fraudlent act. 
@? c

%R  In general, if someone ehas taken an overt step but
has a change of heart before he completes the crime the D will have the option to
raise this 

"
? The reason this is allowed is to give criminals an incentive to desist or that
they didn¶t have the requisite MR for the crime 
? Most courts accept this exception and the —&#'º
 allows reunciation
as long as it is voluntary and not because of external circumstances like
presence of police. 
  

 
@? People v. Rizzo
? An act doen with intent to commit a crime,a nd tending but fialing to
effect its commission is an attempt to commit that crime. 
 
a 
@? United States v. Jackson
? Defendant must take a substantial step towards the commission of the
crime with the intent to commit the crime
? Does not have to eb alst proximate act (Stallworth) 

— 
u Specific Intent related to acts of the crime ± P or Si, not K,R,N
Don¶t want to punish for thoughts
Circumstancial evidence: can be used to show that had an awareness of the likely
consequences of his conduct but only if it was inf act a very likely result.
Smallwood v. State:
@? attempted murder requiresa specific attempt to kill.

u


 ^R


 
(

 
c" 

— 
@? If D has ddone everything in his power to accomplish the result but due to
external circumstances no substantive crime is commited, D will likely raise the
impossibility defense. There are 3 types
@? 1) cu


 D mistakes a fact, such that had the D not been
mistaken, he would have known that his attempt had no possibility of success
(pickpocket who hits an empty pocket)
? Never successful ± because had the facts been as the D believed htemt o
be, there would have been a crime.
Ë? Intent is just as culpable and manifestly dangerous
@? 2) a u


 even if the facts had been as the D thought they
were, there would be no crime. D is mistaken about how an offense is defined.
? The D will always be acquitted:
Ë? Jaffe
Ë? Shooting stuffed deer
Ë? bribing non-juror
 Ë? Lady Eldon importing lace that is not stolen or illegal
Ë? attempt underage voting when of age
Ë? Berrigan: attempted statutory rape w/girl of age
@? 3) —
(c" 
 



c 
c
ccD understand what a statute prohibits but mistakenly believes that
the facts bring his situation within the staute. Different than true legal
impossibility.
? People v. Jaffe (modern day sting operation/hybrid impossibility)
Ë? If a person intends to commit an act that would not be a crime if it
were consummated, the person cannot be convicted of an attempt
Ë? Can¶t be convicted of attempt to buy stolen goods if the goods
werne¶t in fact stolen
Ë?
@? 4) —R c &#'º an attempt to purposely engage in conduct which
would constitute the crime if the attendant circumstance were as the D belives
them to be
? Abandoned distinction between factual and legal
Ë? If circumstances were as they belived them to be then guilty of
attempt
? It does however leave the true legal impossibility intact because there is no
act in violation of a statute evne if things were as the D believed them to
be
Ë? People v. Dlugash (MPC impossibility)
@? D claiming he thought the victim was already dead sicn ehe
was shot before.
@? Person is guilty of attempt when with ntent to commit a
crime he engages in conduct which tends to effect the
commission of such crime. It is no defense that, under the
attendant circumstances the crime was factually or legally
impossible of commission. If defendant belived the victim
tobe alive, it is no defense to attempted murder that the
victim may have been dead
Ë? United States v. Harper (problematic)
@? CoA affirmed conspiracy and reservesed attempted robbery
saying that the robbery wa sin the future and caueing a bill
trap was not the same as actual robbery

#


  cR 


c
  Common law MPC
AR 1) Presence not enough, but evidentiary 1) If communicate w/principal, aid or
(Wilcox v Jeffrey) agreement to aid or attempt [2.06(3)(a)(ii)]
2) Act, done which encourages, 2) If try to communicate but fail,
emboldens, gives confidence (Tally, AL) complicity for solicitation [2.06(3)(a)(i)]
3) Omission if legal duty (Davis, WVa) 3) Omission if legal duty [2.06(3)(a)(iii)]
MR (conduct) (+) Specific intent to aid/abet (Hicks, SCt) P for commission of offense [2.06(3)(a)]
 (+) P not K(Gladstone, WA)
(-) P(misdem.) / K(felony) (Fountain, 7th)
N (natural and foreseeable) (Luparello,Ca)
MR (results) (+) Same MR as crime (McVay, RI) Same MR as the crime (Russell, NY;
(-) Purpose (Ayers, IA) Abbot, NY, cited in Russell)
MR (circumstance) (?) Same as crime (Cannon, 9th î SL) Left to the jury [2.06 commentary, p612]
(?) K or P (Xavier, 3d î K of status)
Abandonment(Defense) No abandonment defense Terminate complicity & deprive aid of
effectiveness OR warn cops [2.06(5)(c)]
Principal did not Accomplice is not guilty (Hayes, Mo) Accomplice is guilty if principal¶s conduct
commit crime î unless due to aff. defense (Vaden, Ak) is criminal [2.06(5)]
Principal acquitted Accomplice can be guilty (Standefer, SCt) Accomplice can be guilty [2.06(7)]
Principal is guilty Guilt = MR of accomplice (McCoy, Ca) Guilt = MR of accomplice
Feigned accomplice Accomplice not guilty (Wilson, Co) Accomplice guilty if complicit [5.01(3)]
Accomplice is victim Accomplice not guilty (statutory rape) Accomplice not guilty [2.06(a)]
Incidental accomplice Accomplice not guilty (buy stolen goods) Accomplice not guilty [2.06(b)]
Innocent agent doctrine Principal is guilty (Ruffin, 2d) Principal is guilty [2.06(2)(a)]

Complicity

Substantive crimes of facilitations:

1)? P, K, R of selling or giving guns to a juvenile (Columbine killings)
2)? K provision of any material support to terrorists (PATRIOT Act)
3)? Money laundering î K transaction designed to conceal ill gotten gains (S1956)
4)? Money laundering î K money from illegal source (S1957)

Rc 
@?  One is accomplice in the commission of an offense if he
intentionally assists another to engage in the conduct that constitutes the crime.
Accomplice activity may include aiding, abetting, encouraging, solitciting,
advising and procuring the commission of the offense. 
? Rcc
c


  In general, the accomplice may be convicted of
any offense committed by the primary party with the accomplice¶s
intentional assistance. Most uridsictions extend liability to any other
offense that was a natural and probable consequence of the cirme solicited,
aided or abetted. It is immaterial whether or not the crim would have gone
on the same without the accomplices aid. 
? 
cc c
 this is when A forces B at
gunpoint to kick C in the face 
@? —  Rejects CL natural and probable consequences rule. Accoplice may only
be held liable under the Code for acts that the person he aided commits 
 @? jc
c
 Someone is not an ccomplice if he is a victim of the offense, if
it¶s so detailed that his conduct is inevitably incident to its commission or if he
terminates his complicity prior to the commission.
? Termination must be active, and must make himself no help to the
commission of the crime or callt he cops, or attempt to prevent the crime 
@? ^
c"#) (CL accomplice liability) 
? defendant was convicted of unlawfully aiding jazz musician to get
employement because he went to the conert and paid for a ticket.
? When someone acts to encourage another in the commission of an illegal
act, they satisfy the actus reus of accomplice liability

Mens Rea
  
@? u* the mens rea of accomplice liability is usually described in terms of
intention. Most courts hold that a person is not an accomplice in the commission
fo an offense unless he shares the criminal intent with the principal. 
? c(j
c+ majority rule is that accomplice liability
nevertheless attaches in cases involving recklessness or negligence