The present Draft places Forcible Rape (Section 213.1) at two levels for grading purposes. The base offense is graded as a felony of the second degree, with an enhancement to a first-degree felony upon proof of any one of three aggravating circumstances. Section 213.1(2) lists three aggravating factors that elevate the grade for offenses covered in Section 213.1(1) to a first-degree felony: (a) the use of a deadly weapon; (b) multiple offenders; and (c) serious bodily injury. Existing law provides extensive support for felony status for acts of sexual penetration or oral sex when a deadly weapon is used or multiple offenders participate.

B. SECTION 213.1. FORCIBLE RAPE

(1) Forcible Rape. An actor is guilty of Forcible Rape if he or she causes another person to engage in an act of sexual penetration or oral sex by knowingly or recklessly:

(a) using physical force or restraint, or making an express or implied threat of bodily injury or physical force or restraint; or

(b) making an express or implied threat to inflict bodily injury on someone else. Forcible Rape is a felony of the second degree and a registrable offense.

(2) Aggravated Forcible Rape. An actor is guilty of Aggravated Forcible Rape if he or she violates subsection (1) of this Section and in doing so:

(a) knowingly uses a deadly weapon to cause the other person to engage in the act of sexual penetration or oral sex; or

(b) knowingly acts with one or more persons who participate in the sexual penetration or oral sex, or who assist in the use of force, threat, or restraint when it occurs; or

(c) knowingly or recklessly causes serious bodily injury to the other person or to someone else.

Aggravated Forcible Rape is a felony of the first degree and a registrable offense.

Comment:

Section 213.1 defines the gravest of the sexual offenses. They are graded as second-degree felonies in subsection (1), with provisions that aggravate the offense to a first-degree felony in subsection (2). Both offense grades are based on the presence of force or other exceptionally coercive circumstances. Because of their seriousness, both grades are eligible for the collateral consequences of conviction specified in Section 213.11.

Article 213 focuses on correctly discriminating between more serious and less serious forms of sexual offenses. All sexual offenses merit significant penal sanctions, but the most aggravated instances warrant punishment at higher levels. Any just and workable Code limits the harshest punishments to egregious crimes that involve reprehensible conduct. The highest grades of punishment under Article 213 must be restricted to the egregious and reprehensible offenses that deserve exceptionally severe punishment.

This Comment to Section 213.1 addresses: (1) the scope of 1 the core offense of inflicting or threatening to inflict bodily injury, or using physical force or restraint; and (2) the aggravating circumstances that raise the grade of forcible rape to a first-degree felony—the use of a deadly weapon, the presence of multiple offenders, and the infliction of serious physical injury. Consent is not an element of any of the crimes described in Section 213.1. A person confronted with a weapon or the threatened use of force may appear to consent to engage in the sexual acts, but the conditions under which apparent consent occurs makes it legally ineffective. The conditions described in Section 213.1, when proven beyond a reasonable doubt, make it superfluous to inquire into the other person’s lack of willingness. If the prosecution proves the circumstances covered in Section 213.1 beyond a reasonable doubt, there is no added burden to establish lack of consent.

The sole exception to this general principle relates to encounters that involve force, restraint, or weapons used under conditions that both parties willingly accepted in advance. These sexual encounters, colloquially referred to as “BDSM,” satisfy Section 213.1 and should not benefit from a blanket exception that could too easily be invoked when agreement to physical force or restraint is ambiguous. At the same time, these encounters should not give rise to criminal liability when voluntarily engaged in by consenting adults and when the consensual force or restraint does not inflict serious bodily injury. The drafting challenge is to avoid criminalizing these encounters without creating an easily abused exception to appropriate criminal liability. Section 213.1 solves this challenge by providing an affirmative defense for a consensual BDSM encounter, explained in the Comment to Section 213.0(4) and in the Comment to [Section 213.X (defining the BDSM defense)].

1. Physical Force – Section 213.1(1)

Section 213.1(1) penalizes sexual penetration or oral sex accomplished through actual or threatened bodily injury, physical force, or restraint. Punishing these offenses more severely than other forms of nonconsensual sexual assault is not controversial. The use of physical force or restraint adds physical violence—actual or threatened—to the injury of nonconsensual sexual penetration or oral sex. To the extent that added penalties operate as a deterrent, grading these offenses more seriously discourages the use of physical force in the offense. When actual or threatened force exceeds the physical actions inherent in intercourse and instead is used to cause the person to engage in the act, as Section 213.1 requires, the offender’s conduct merits severe punishment.

Section 213.1(1) includes both physical force and physical restraint to make clear that the proscribed conduct includes physical action that causes a person to engage in the sexual act by preventing or limiting that person’s ability to speak or move freely. Because sexual activity often includes physical actions that may inhibit the other party’s freedom of movement, the Code requires that the physical force or restraint be used, with a culpable mental state, “to cause” a person to engage in the sexual penetration or oral sex. Commonplace differences in size and strength between sexually intimate parties do not in themselves cause a person to engage in a sexual act unwillingly. These differences do not in themselves amount to physical force or physical restraint as defined in Section 213.1(1). The force or restraint sufficient to establish the aggravated offense defined by Section 213.1(1) must exceed that inherent in intercourse, in that an actor’s greater physical strength, larger body weight, or similar discrepancies cause the other person to engage in the act of sexual penetration or oral sex when that other person would not otherwise have done so. For example, an actor who locks the door of a room and stands in front of it, frustrating the victim’s expressed desire to leave, would satisfy the requirement of physical restraint, whether or not the victim was physically touched. An actor who locks the door to a room so that the other person may have privacy, however, has not used restraint to cause that person to engage in a sexual act. On the other hand, the fact that an actor’s larger size or weight limits the other person’s movements in an act of sexual penetration or oral sex does not itself constitute the use of physical force or restraint within the meaning of Section 213.1(1).

There is no requirement that the physical force or restraint used to cause a person to engage in the act succeed in overwhelming the victim. By contrast, former Section 213.1 of the Code applied only when an actor “compel[led]” submission, a statutory element often interpreted to require that the victim resist. An actor who pins down the victim’s body or hands conveys a threat of greater violence, even if the victim might wrestle out of the grasp. An actor who covers a victim’s mouth and says “you better not scream” uses a form of physical restraint that implicitly threatens physical force or bodily injury, even though the victim might be physically capable of pushing the hand away. Section 213.1 does not require resistance so long as physical force or restraint, actual or threatened, is used to cause a person to engage in the sexual act. As noted, the simple act of a larger person lying on top of a smaller person in a nonconsensual sexual encounter is not physical force or restraint causing the smaller person to engage in a sexual act, as specified in Section 213.1.

The threat of physical force or restraint or bodily injury required in Section 213.1(1)(a) includes not only situations in which the actor makes an explicit threat by words or acts, but also situations in which the threat is implicit. In Johnson v. State, the victim was kidnapped at gunpoint and raped by a group of men. The defendant was not one of the men who had kidnapped her, and there was no evidence that he knew how she came to be in the house. However, the victim testified that she was walking naked to the bathroom “hysterical and panicking” when she encountered the defendant, whom she did not know. He followed her into the bathroom and penetrated her while she repeatedly pleaded, “please don’t.” The jury convicted under a statute requiring “physical force or a threat, express or implied, of death or physical injury to or kidnapping of any person.” Affirming the conviction, the court found sufficient evidence of force because the defendant’s actions—cornering the hysterical and frightened victim in the bathroom—were a form of restraint. Under Section 213.1(1)(a), a court would not have to stretch the facts to find restraint. Given the circumstances of the encounter, the defendant clearly made implied threats of both physical force and restraint.

Section 213.1(1)(b) also reaches express or implied threats to inflict bodily injury on third parties. Prevailing law treats these as equivalent to threats to inflict violence directly on the victim. This approach is not controversial. Section 213.3 addresses circumstances in which the actor uses a lesser but still coercive threat, such as a threat to commit a serious crime (like arson), to cause the other person to engage in a sexual act.

2. Grading – Section 213.1(2)

Section 213.1(2) lists three aggravating factors that elevate offenses covered in Section 213.1(1) to a first-degree felony. The factors are: (a) threatening to use a deadly weapon; (b) multiple offenders; and (c) serious bodily injury.

The provision in subsection (a) for use of a deadly weapon has longstanding and universal support. It requires no further explanation. Subsection (b)’s approach of grading more harshly rapes committed by multiple offenders merits brief discussion.

This provision applies to rapes that violate Section 213.1(1) and involve additional persons who “participate in the sexual penetration or oral sex, or who assist in the use of force, threat, or restraint when it occurs.” The fact that another actor aided a defendant in committing the offense does not in itself warrant higher punishment for the defendant. But when another actor actively participates in or facilitates the offense when it occurs, that fact justifies an aggravated penalty. Rape is far more brutal, aberrant, and frightening to a victim who is subdued or violated by several people acting together. The classic situation is a “gang rape,” in which multiple actors engage in sexual penetration or oral sex. Other covered situations are those in which one actor engages in sexual penetration or oral sex while others restrain the victim or act as guards or intermediaries preventing detection, interruption, or escape.

The aggravated penalty authorized by subsection 213.1(2)(b) is restricted to situations in which the other actors themselves engage in acts of sexual penetration or oral sex, or otherwise assist in the acts by using force, threats, or restraint. An aider and abettor who purposely provides access to the place where others commit the sexual attack, but who is absent and otherwise plays no role in the offense when it occurs, would not ordinarily render the principal perpetrator liable for the aggravated penalty authorized under this provision. Absent other aggravated circumstances, the principal would be liable only for the basic offense under Section 213.1(1), and the person who aided would be liable only for aiding and abetting that basic offense.

The multiple-offender provision does not cover all forcible rapes in which an actor has accomplices. Attacks involving an aider and abettor who does not actively participate in committing the offense when it occurs should not receive the aggravated penalty. (Compare Illustration 6 with Illustration 7, below.) The primary justification for the aggravated penalty is the heightened risk and trauma to the victim when multiple actors participate. The involvement of multiple actors increases the risk of significant injury and communicates to the victim the futility and dangerousness of resistance. All rape is dangerous, but rape by multiple assailants acting in concert adds to the victim’s risk of injury, to the victim’s fear, and to the lasting scars.

Section 213.1(2)(c) provides an enhanced punishment for violations of Section 213.1 that result in serious bodily injury. The Model Penal Code defines “serious bodily injury” as a “bodily injury which creates a substantial risk of death or which causes serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.”