Sex Crimes Midterm
SEX CRIMES MIDTERM FALL 2024 STUDY GUIDE
Week One – Rape Myths; Historical and Cultural Treatment of Rape
Ways in which maintaining false beliefs or myths about rape have an effect on a society
Situational Myths - misconception about crime
who the offenders are (ex: strangers, friends, family)
who the victims are (ex: only bad people)
when and where it happened (ex: parking lots, malls)
Attitudinal Myths - False beliefs or stereotypes that excuse or justify the behavior
Legislation
Rape myths tied to broader cultural beliefs
Sex role stereotyping - assigning outdating gender roles
Adversarial beliefs about sex - these people believe that sexual relationships are exploitive (they also believe in rape myths)
interpersonal violence - these people believe that force/ coercion are acceptable ways to gain compliance in relationships
Origin of the word “rape” and how it reflected historical treatment of the crime
Rape - from Latin “rapere” - steal, seize, carry away
A “property” crime
A “man on man” crime
Rape of a: virgin (prize) /man
women did not exist as independent people, they were the property of their fathers and husbands.
Force/coercion to obtain property
Rape in pre-Columbus native American culture
Rape in the Americas before Columbus (would care to the victims)
Violence against women extremely rare
Women central to Native American culture
Tribal courts - let victim decide the punishment
Punishment
Change in attitudes about rape as a result of Brownmiller’s book “Against Our Will: Men, Women and Rape”
Feminist movement (1970) - 1st time someone categorized rape as power and control and that its violent
Initiatives - 1990’s - revision or repeal of statutes by all states and rape was redefined
Regional perceptions of rape in U.S.
Differences in:
Definitions
Age of consent
Legal age to marry
Megan’s Law
Determination of whether rape occurred made by the Israelites
city - if a woman didn’t cry out for help it was consensual
field - blameless b/c there would be no one to help but would be forced to marry the attacker and forced to pay dowry. If she were engaged the rapist would be stoned to death and she would be put on the market (on a discount). Married woman would be stoned, and husband wouldn’t be allowed to save her
Week Two - Sex crimes statutes and Offenses by the Numbers
Carnal knowledge and carnal abuse
carnal knowledge - sexual intercourse w/ an adult woman either forcibly or while under the influence
carnal abuse - an act of “debauchery” = excessive indulgence of sexual pleasure. Committed against the female sex organ by a male sex organ (anything short of penetration)
English courts’ justification for marital rape exemption as described in State v. Smith
Traced exemption to English court decisions and common law
contract law - you have given up your consent when you are married
Marriage contract constituted irrevocable consent
Prosecutions for rape of a wife became legal when divorce made legal
Prior consent to sex not a defense for all else – exemption discriminatory
rooted in concept of wives as “chattel”
NJ Supreme Court ultimately held no marital rape exemption exists in law
Significant changes in NJ sex crimes statutes after enactment of 2C in 1979
Laws became “gender-neutral”
Crimes graded and definitions broadened or clarified
Age of consent changed
Mistake of age
fake identity
Resistance and corroboration requirements; no presumptions regarding age, marriage or impotency
Evidence of sexual history
Fornication and adultery eliminated; Prostitution and Bigamy downgraded
Roe v Wade
Six factors making certain sex crimes “Aggravated” sex crimes
Aggravated crimes - more serious
Whether a crime is an “aggravated” crime depends upon:
use of weapon
age or status of victim
suspect’s relationship to victim
more than one suspect
nature of the injury
commission of other crime
Definitions in NJ sex crimes statutes:
Intimate parts - any sexual organ male or female. (ex: inner thigh)
Sexual Penetration - vaginal / anal / oral / insertion of hand/ finger/ or any object
Physically helpless - unconscious or physically unable to flee or unable to communicate consent (Ex: sleeping)
Mentally incapacitated - intoxicated given without their knowledge or consent (Ex: spiked drink) (viseme)
Severe personal injury - severe bodily injury/ incapacitating mental anguish or pain
Criminal Sexual Contact Statute - Intentionally touching someone’s intimate parts for sexual reasons or to humiliate them, without their consent. This is a fourth-degree offense
Invasion of Privacy statute – three types of behavior criminalized
Three types of crimes – committed without victim’s consent AND
Observing a person (4th degree) OR
Photographing or recording an image of a person (3rd Degree) OR
Disclosing a photograph, recording or image of a person (3rd Degree)
The victim would not expect to be observed or photographed or have an image disclosed
It is not a violation:
To observe someone in the foyer or entrance to a retail fitting room
Or to photograph, film or record that person
If prior notice conspicuously posted and a lawful purpose
It is a violation:
To observe someone in or using a private retail dressing stall
Or to photograph, film or record that person or disclose that image
Where the suspect knows that the victim’s intimate parts may be or are exposed, or the victim is engaged in sexual activity
Lewdness statute upgrading
Committing a flagrantly lewd and offensive act
Knowing or reasonably expecting it will likely be seen and
Will alarm or affront a non-consenting person
Lewdness upgraded if the act will likely be seen by:
1.A child under 13 and suspect is more than 4 years older OR
2.A victim unable to understand the sexual nature of the act due to mental disease or defect
Week Three - Defenses; Consent; and Rape Shield law
State in the Interest of M.T.S. and the definition of consent
Issue: Is “force” met by non-consensual penetration using no more force than necessary to accomplish the penetration?
Holding: Physical force in excess of that inherent in penetration is not required.
M.T.S. and the concept of resistance
What about “resistance”? :
M.T.S. Court:
Resistance is an outward manifestation of the lack of consent
BUT this puts the victim on trial
Contrary to statutory intent
Why is M.T.S Important?
It rejects any shift of focus (focuses on the defendant’s actions)
“Physical force" is satisfied if any amount of force or coercion applied in the absence of affirmative and freely-given permission
Physical force in excess of penetration not required
When denial cannot be a defense
Denial can't be used as a defense in court when it's not supported by evidence or when it contradicts established facts. For example, if a defendant simply denies an allegation without providing any factual basis or evidence to support their denial, the court may not accept it as a valid defense1. Additionally, if the denial is clearly contradicted by overwhelming evidence, it may be deemed inadmissible. Also this type of defense is usually in contact cases.
How credibility of the victim can be part of a defense
Victim’s Credibility: The credibility of the victim is often questioned, especially when there is no DNA evidence. This can involve challenging the victim’s statements, behavior, or past allegations.
Prior False Allegations: Evidence of the victim’s prior false allegations can be introduced if certain factors are met, such as similarity to the current allegation and relevance to the case.
Cross-Examination: Effective cross-examination of the victim can be used to highlight inconsistencies or contradictions in their testimony.
Fresh Complaint/Tender Years Evidence: Statements made by the victim shortly after the incident or during their early years can be used to support or challenge their credibility.
Defense of “accident or mistake”
Accident or Mistake: The defendant asserts that any contact was accidental or a result of a misunderstanding, not intentional.
Connection between force and Resistance under NJ law prior to 1979
Force defined as that degree of force sufficient to overcome any resistance of the victim Thus, proving resistance proved force
The force/resistance construct shifted focus to victim’s actions, not suspect’s
NJ statute 2C: 14-5:
No proof of resistance required B
But no 2C definition of “force”
Courts: “force” is any act of force beyond that needed to accomplish penetration
Types of crimes where consent is not available as a defense
Statutory Sexual Assaults: Crimes based on the age, relationship, or status of the victim.
Authority Figures: When the actor is related to, supervises, or is in loco parentis to the victim.
Victim’s Condition: If the victim is physically helpless, incapacitated, or mentally defective.
Detained Victims: When the victim is detained, on probation, or parole.
The definition of “Prior Sexual conduct” in the Rape Shield statute
“Prior sexual conduct” occurring either: balancing victim’s privacy with defendant’s right to a free trial and 6th amendment right of confrontation
1. With the defendant on trial - Only relevant to show defendant reasonably believed victim gave consent
2. With someone else - Only relevant to show source of semen, pregnancy or disease
*Note that the statute also covers evidence of the victim’s manner of dress
State v. Guenther factors affecting admissibility of prior false allegations made by the victim
1. Victim’s Credibility: Is the victim’s credibility a central issue in the case?
2. Similarity: Are the prior allegations similar to the current charges?
3. Timing: How close in time are the prior allegations to the current incident?
4. Evidence Required: What type of evidence will be needed to prove the prior allegations?
5. Relevancy vs. Prejudice: Does the relevance of the prior allegations outweigh potential undue prejudice, confusion, or waste of time?
Week Four – Victimization and Psychological Repercussions
Trauma and the Brain video – three survival responses
Fight: The brain prepares the body to confront the threat.
Flight: The brain triggers the urge to escape from the danger.
Freeze: The brain causes the body to become immobile, hoping the threat will pass unnoticed.
Explaining each of the five letters constituting consent in F.R.I.E.S.
F – Freely Given
R – reversible
I – Informed
E – enthusiastic
S – specific
High risk populations for victimization
Adolescents and children
College students
Mentally and physically challenged
Psychiatric patients
Elderly
Rural residents
Non-English-speaking persons
Legal/illegal Immigrants
LGBTQ+
Three phases of the cycle of Violence
· Stage 1: Tension Building
· Stage 2: Acute or Abusive
· Stage 3: Honeymoon
Why offenders’ target certain victims of interpersonal violence and sexual assault
A crime of power and control, rather than sex
Victims deprived of personal control
Victims are disempowered
Victims chosen typically upon two main factors:
Vulnerability and power differential
Reasons why victims don’t report sex crimes
What you should not do or say to sex crimes victims
DO…
Believe them
Listen without judgment
Ask, “How can I help you” and offer resources
Keep their confidence
Validate their emotions and feelings
Check in without an agenda
Remind them that you’re there when they are ready
Respect their decisions
DO NOT…
Share your own stories
Tell them what they “should” or “should not” do
Make decisions for them or discourage or pressure them to report
React too emotionally or judge them
Report their disclosure without their knowledge
Minimize their experience or tell them to look on the “bright side”
Ask too many questions or ask “why did you…?”
Deny them time
The “lifestyle theory” of victimization
Suggests that individuals’ daily activities and lifestyle choices can increase their risk of becoming victims of sexual assault
Routine Activities: Engaging in certain activities or behaviors can expose individuals to higher risks.
Social Interactions: Frequenting certain places or associating with particular groups can increase vulnerability.
Risk Factors: Factors like being out late at night, living in high-crime areas, or engaging in risky behaviors can elevate the likelihood of victimization.
Week Five - Operations of an SVU and Forensic interviewing
Challenges faced by a sex crimes unit in sex crimes cases
No direct witnesses
Delayed reporting
Lack of forensic evidence
Inconsistent/inaccurate/incomplete statements
Uncommon suspect profiles
Challenges with child victims
Juries
Judges
Retaining perspective and containing emotion
Working conditions
Minimization and recantation - why children lie about abuse
Minimization: Children might downplay the abuse to protect the abuser, avoid trouble, or because they don’t fully understand the severity.
Recantation: Children may retract their statements due to fear, pressure from the abuser, or a desire to return to normalcy.
Three crucial issues specific to child interviews
1. Linguistics: Language is concrete Using common terminology
2. Age/developmentally appropriate questions:
Avoid “Good touch vs. bad touch”
Determining the passage of time
Determining dates
Determining number of occurrences
3. Suggestiveness: The degree to which one’s memory or recounting of an event is influenced by suggested information or misinformation
Interview techniques criticized in the Michaels case appeal
Mild threats and cajoling: Interviewers used coercive methods to elicit responses.
Positive and negative reinforcement: Children were rewarded or punished based on their answers.
Repeated interrogation: Children were subjected to multiple interviews, increasing the risk of suggestibility.
Encouragement to be “little detectives”: Children were influenced to find evidence against the accused.
RATAC protocol five phases of forensic interviewing
· Rapport building
o Easy conversation and comfort
o Ability to relate information
o Assess child’s capabilities
· Anatomy ID
o Establish knowledge of body parts
o Identify child’s names for body parts
· Touch inquiry
o Transition questions
o Establish positive and negative touches
· Abuse scenario
o Open-ended, non-suggestive questions
o Gradual progression as needed
o Asking questions in the alternative
· Closure
o Thank the child and ensure future safety
Use of Anatomically correct dolls
· Not until a disclosure is made
· To demonstrate abuse scenario
What happens during a consensual overhear
· Engage suspect in a conversation
· Police overhear it and record it
· Only prior to police suspect interview
Six types of grooming behaviors
1. Form relationships
2. Test boundaries
3. Escalate touching
4. Intimidation
5. Sharing explicit material
6. Secret communications
Week Six – Pretrial Issues, Bail, Victim Protection, Motions
Three types of cases where prosecutors are most likely to see false reporting
· Divorce/Custody Cases: False reports may arise to gain an advantage in custody battles.
· Covering Up Infidelity/Pregnancy: Allegations might be made to hide infidelity or the true source of a pregnancy
· Mental Health Issues: Victims with mental health challenges may make false allegations.
Type of restrictions contained in No Contact orders
· No direct or indirect contact: The defendant is prohibited from any form of communication with the victim.
· Barred from specific locations or events: The defendant cannot go to certain places or attend certain events1.
· Child victim cases: No contact or unsupervised contact with any child under 162.
· Defendant’s responsibility: It is always the defendant’s duty to avoid contact with the victim.
The Sexual Assault Survivors Protection Act (SASPA) and the specific purpose of its enactment
· Purpose: SASPA allows victims of sexual assault, sexual contact, or lewdness to file for a restraining order with or without criminal charges1. This was not possible before unless there was a domestic or dating relationship.
· Scope: Restraining orders under SASPA can be instituted against anyone, not just those in a domestic or dating relationship.
· Civil Case: It’s important to note that a restraining order is a civil case, separate from any criminal charges
Rights afforded to victims of sex crimes under the Sexual Assault Victims’ Bill of Rights
· Right to a Medical Forensic Examination: Survivors have the right to receive a medical forensic examination at no cost.
· Preservation of Evidence: Sexual assault evidence collection kits (rape kits) must be preserved for 20 years or the maximum applicable statute of limitations, whichever is shorter.
· Notification: Survivors must be informed of the results of their evidence collection kit, including any DNA profile matches or toxicology reports, unless it impedes an ongoing investigation2.
· Written Notification Before Disposal: Survivors must receive written notification before any intended destruction or disposal of their evidence collection kit.
· Information on Rights and Policies: Survivors have the right to be informed in writing about the policies governing the collection and preservation of their evidence
The ways in which the Office of Victim-Witness Advocacy and Victim Advocates assist prosecutors with victims of sex crimes
Emotional Support: Victim advocates provide emotional support and counseling to help victims cope with the trauma of the crime and the stress of the legal process.
Information and Education: They inform victims about their rights, the legal process, and what to expect during court proceedings. This includes explaining legal terms and procedures in a way that is easy to understand.
Safety Planning: Advocates assist in creating safety plans to protect victims from further harm, which may include arranging for protective orders or safe housing.
Accompaniment: Victim advocates often accompany victims to court proceedings, medical appointments, and meetings with law enforcement or prosecutors, providing a supportive presence.
Resource Connection: They connect victims with necessary resources such as medical care, mental health services, financial assistance, and housing support.
Communication Liaison: Advocates act as a liaison between the victim and the prosecutor, ensuring that the victim’s voice is heard and their needs are communicated effectively.
Assistance with Documentation: They help victims with the paperwork required for legal proceedings, compensation claims, and other necessary documentation.
Crisis Intervention: In cases of immediate danger or distress, advocates provide crisis intervention services to stabilize the situation and ensure the victim’s safety.
Two types of pretrial motions and the purposes of each (slide 20-25)
1. Motion to Dismiss:
a. Purpose: This motion requests the court to dismiss the case entirely. It can be filed for various reasons, such as lack of jurisdiction, insufficient evidence, or procedural errors. The goal is to avoid a trial if there are fundamental issues with the case that make it invalid or unjust to proceed1.
2. Motion to Suppress Evidence:
a. Purpose: This motion seeks to exclude certain evidence from being presented at trial. It is often based on claims that the evidence was obtained illegally, such as through an unlawful search and seizure, or that it violates the defendant’s rights. The aim is to prevent potentially damaging evidence from influencing the jury if it was gathered inappropriately