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27 Rutgers L.J. 417 (1995-1996)
Non-Stranger, Non-Consensual Sexual Assaults: Changing Legislation to Ensure that Acts are Criminally Punished

handle is hein.journals/rutlj27 and id is 427 raw text is: NON-STRANGER, NON-CONSENSUAL SEXUAL ASSAULTS: CHANGING LEGISLATION TO ENSURE THAT ACTS ARE CRIMINALLY PUNISHED I. INTRODUCTION Rape' can be divided into two types: that committed by a stranger, and that committed by a non-stranger. During a stranger rape, the actor often uses physical force or threat of force causing serious bodily harm.2 In a non- stranger sexual assault, the actor does not normally use physical force or threat of force causing serious bodily harm; lack of consent characterizes the act.3 Included in this latter category is date rape and acquaintance rape.4 In some jurisdictions when force or threat of force during a sexual assault cannot be proven to the level desired by statute, prosecution, judge and jury, actors who perform sexual acts with non-consenting victims are not committing any crime.5 Because non-consensual sexual assault is clearly a 1. The term sexual assault has replaced the term rape in many statutes and legal discussions. See, e.g., COLO. REV. STAT. ANN. § 18-3-402 (1986); CONN. GEN. STAT. ANN. § 53a-70 (West 1994); NEv. REV. STAT. ANN. § 200.366 (Michie 1992); N.J. STAT. ANN. § 2C:14-2(c)(1) (West 1982 & Supp. 1995). Sexual assault can take many forms other than sexual intercourse. See infra note 83 and accompanying text. For a discussion of why the term sexual assault is more appropriate than the term rape, see infra notes 136-37 and accompanying text. 2. ROBIN WARSHAW, I NEVER CALLED IT RAPE 65 (1988). 3. Id. This is not to say that non-stranger assaults never involve force. See, e.g., State v. Oliver, 133 N.J. 141, 145, 627 A.2d 144, 146 (1993) (finding that defendant, a close friend with both victims, used brute force to cut off the victims' air supply). However, this Note focuses on non-stranger sexual assaults where force (defined as that causing serious bodily harm) is not present. This proposal could also be a safety net for situations in non-stranger cases where force is present but cannot be proved. 4. Non-stranger sexual assaults have characteristics unique from those involving strangers. Id. at 139. In an acquaintance rape, the woman involved is often voluntarily with the man who attacks her. He usually does not use a weapon and may not hit her; she usually doesn't scream-out of fear, not out of physical inability-and she often has few severe marks or bruises afterward. The presence of semen in or on her body only shows that the two had sex, not that it was forced. There is rarely a witness to the rape. Id. 5. Some states do not have a lower standard of sexual assault where actual or threat of force is not required. See infra note 108 for examples from such states.

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