ADMJ 103 Lecture 22: Admj_103-_LE_22
21 Aug 2020
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Defendant had sexual intercourse (penetration by the penis of the vulva) Using physical force or the threat of force (required resistance to prove); and. Cl: a husband who forced his wife to have sex could not be convicted of rape. Justifications: consent by marriage, w is property of h, single legal existence. Retained by most jurisdictions but trend limits or eliminates. Where spousal immunity is retained, h may still be prosecuted for assault. Where retained, separation or divorce destroys immunity. Cl rape required both force and lack of consent. Lack of consent alone was not sufficient. ~ Resistance was necessary to establish the force element of the offense. A conviction for forcible rape may not stand unless v resisted and her resistance was overcome by force or threats. The resistance requirement has been confused with consent, i. e. if v didn"t resist, it"s hard to believe she did not consent.
