Crimes Against People: Rape
Abstract
Rape is the forced sexual violation of an individual, either male or female, by another person. Over time, laws have been developed to protect individuals from rape. Initially, many legal frameworks applied the England Common law in their issues related to the law include the rape crime. In this paper, a discussion of the elements required by Common law to establish the rape crime is discussed. It also discussed the present Florida laws on rape which are now listed under the sexual battery category. Finally, a comparison of the elements is conducted, and any changes that need to be made to the present laws are pointed out.
Introduction
The laws that protect individuals from forced or coerced sexual behaviors have for the longest time been appropriate and necessary due to the rampant crime. Rape is the forced sexual violation of an individual, either male or female, by another person (Cliff, 2019). Some stakeholders consider tape to be a crime of violence and aggression and not sex, while others consider it a crime of both violence and sex. Over time, laws have been developed to protect individuals from rape. This essay will look into the crime, expressly its elements stipulated in common law, and compare them to its elements under a modern statute. Finally, the paper will move to look into any changes incorporated into the modern laws of rape.
Elements of Rape Under Historical Common Law
Common law stup[ilated that the traditional offense of rape needed five elements to be proven. They include penetration, force, and resistance, nonconsent, absence of a spousal relationship/ the marital exemption, and the culpable state of mind (mens rea) (National Paralegal College, 2021). The actions related to sexual; intercourse is considered on a case-by-case basis by the courts. Sexual intercourse happened when sexual contact between individuals entails their sex organs if they are not the mouth or anus of another person. In common law, the victim needed to be a woman alone, as rape occurred when a man raped the woman. Notably, husbands cannot be convicted for raping the wife due to the presence of a married relationship even when they are separated. Any penetration, however slight, was sufficient to prove rape, and it was not a requirement that semen was emitted.
Force is also a fundamental element of crime which could be a physical or constructive force. For force to be established, the exertion of physical restraints was sought to be convicted. The victim should show some form of resistance to the force. The woman must either cry or resist or be considered to have given their consent to the action.
Elements of Rape Under Florida Statute Laws
Currently, Florida regulations have included rape as part of the offenses under the sexual battery. Therefore, there is no longer a different legal definition given to rape. The establishment of the rape offense will require the elements listed under the sexual battery offense to be proven (Findlaw, 2018). They include the defendant did engage in either oral, vaginal, or anal penetration using their sexual organs or objects. On the other hand, there is a need to prove a union between the sexual organ of the defendant with the mouth, vagina, or anus of the victim. If the victim is below 12 years, there is no need to prove a lack of consent from the victim as the young age demonstrates a lack of consent. However, an older victim will need to show that they did not consent voluntarily. The prosecutor will have to show the lack of consent but must not show resistance or protest.
Comparison of the Elements of Rape Between Historical Common Law to the Modern Florida Laws
Under common law, rape had to be coerced sexual intercourse with a woman with no form of consent given. Since the rape had to be illegal sexual intercourse, the husband could never be convicted of raping the wife. Conversely, in the modern Florida Statute, rape has been defined so that even the husband could rape the wife. Also, it does not have to be a woman and man as the involved persons. Florida laws include all heterosexuals and homosexuals. Penetration in common law needed to happen through the sexual organs of the perpetrator and the victim. However, in Florida laws, the penetration could either be oral, vaginal or anally. Force is not required in Florida laws other than common law, which requires force and a form of resistance from the victim. Florida law acknowledges that consent could be manipulated such that a victim could be lured into the crime, and hence intercourse from this case is to be considered rape. If any form of consent was established in common law, the defendant would not be convicted for rape.
In common law, the mens rea element in common law stated that the defendant would need to act to have sexual intercourse with the woman against their will. In Florida, they would modify this element through the special age defense. Anyone below the age of twelve does not have to prove that they consented since their age already is a presumption of the lack of consent. Anyone above the age of twelve will have the prosecutor proving their lack of consent to the crime.
Changes Needed in the Modern Florida Laws on Rape
Despite the development in laws related to rape in Florida, the state remains a long way from a proper social understanding of the matters related to the crime and the tole of the law in addressing them. For example, there is still no clear definition of what consent is and the respective minimum requirements (Schulhofer, 2017). Also, even when the minimum requirements are upheld, such as having explicit permission, what circumstances would invalidate the evident consent. Failing to have better clarifications on these issues only puts some individuals at the potential risk of being accused of rape even when they are innocent.
The changes would include making it clear that persons will not want to be sexually penetrated except and until they have indicated through words or actual conduct that they want to. The lack of this requirement leaves the law making the assumption of constant reception to sexual intercourse regardless of time or person until they carry out an action that revokes the permission. Society does require clarification on the consent issue, which should be done through the law.
References
Cliff. (n.d.). Crimes against people. CliffsNotes Study Guides | Book Summaries, Test Preparation & Homework Help | Written by Teachers. https://www.cliffsnotes.com/study-guides/sociology/deviance-crime-and-social-control/crimes-against-people
Findlaw. (2018, May 16). Florida Rape laws. https://statelaws.findlaw.com/florida-law/florida-rape-laws.html
National Paralegal College. (2021). Rape. Lawshelf Educational Media. https://lawshelf.com/coursewarecontentview/rape/
Schulhofer, S. J. (2017). Reforming the law of rape. Law & Ineq., 35, 335.
