Tchen, Christina M.
December 1983
Journal of Criminal Law & Criminology;Winter1983, Vol. 74 Issue 4, p1518
Academic Journal
This article examines the definition of rape and lack of consent in the rape statutes of states in the U.S. For the past three hundred years, rape has been defined as sexual intercourse by force and against the victim's will. The essential element distinguishing rape from non-criminal sexual intercourse was the victim's lack of consent. In order to convict a defendant of rape, the prosecution has been required to prove the subjective element of lack of consent through a number of objective criteria, including proof that the victim resisted the assailant to the utmost, that the victim cried out while being attacked, that the victim filed a complaint promptly, and that her testimony has been corroborated. Despite over twenty years of rape reform, the questions of how to define consent and how to use it in a reform statute are still unresolved. A variety of statutory models have been enacted throughout the country, but none of these formulations have adequately addressed all the concerns posed by the traditional common law. In order to rectify the misconceptions in the common law, rape reform statutes have attempted to focus on force or coercion as the key element of the crime; eliminate the use of implied consent and the resistance standard; and punish the defendant for his culpable actions, rather than the victim for failing to fight back.


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