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Actus Reus: the physical or external component of the crime

1.Act/Omission: must be a voluntary (slightest movement, and willed if in the mind of D) act; a willed muscular contraction (no seizure, convulsions, sleep/hypnosis) 2.Social Harm
Exception: Not all of D’s actions must be necessary; i.e. Epileptic driving a car with knowledge of condition (Decina)
Exception: Robinson: cannot punish addiction/statuscommon cold ;; Powell: Drunk in public act of drunk in public placeguilty
Omission: No legal duty to act; (MPC) Exceptions: Statutory, Special Relationship, Contract, Assumption of Care, Source of Peril
(CL): Exceptions: Same as above
Mens Rea: (broad def.) culpable state of mind; (narrow def.): D commits the actus reus with the particular mental state set out by the offense
(CL Intentionally): (1) it was his conscious object to cause the result; or (2) he knew that it was virtually certain to occur as the result of his conduct
(CL Knowingly): (1) is actually aware of fact, (2) correctly believes that it exists, or (3) suspects it exists and purposely avoids learning if his suspicion is correct (willful blindness)
(CL Negligently): Objective Test: if he should be aware that his conduct creates a substantial and unjustifiable risk of social harm (synonyms: gross negligence, culpable negligence)
(CL Recklessly): if he consciously disregards a substantial and unjustifiable risk that his conduct will cause the social harm of the target offense
(CL Malice): if he intentionally or recklessly causes the social harm of an offense
Spec. Intent: (1) the intent to commit some act that is not party of the actus reus, (2) a special motive for committing the actus reus, (3) awareness of particular attendant circumstance
CL. Gen. Intent: Any offense that requires proof of a culpable mental state, but which is not a specific-intent offense; [awareness of facts that make conduct criminal]
CL. Trans. Intent: acts intentionally with intent (above) but the identity of the desired victim is at question, e.g. shoot and miss, hit bystander
(Legislature): often ambiguous; placement; punctuation; attendant circumstances: mens rea may not apply to the attendant circumstance(s) elements
(CL Strict Liability): most often to Public Welfare crimes; (e.g. nonpublic-welfare- statutory rape):: LaFave (l-intent, sev.harm&crime, D learn facts, diff&freq. pros., comp. laws)
(MPC)
Purposely: conscious object to [engage in conduct][cause the result][awareness (hopes/believe) that such attendant circumstances exist]
Knowingly: aware that the [result is practically certain to occur as result of conduct][conduct is of such nature][attendant circumstances exist or high probability of existence (MPC
way to deal with willful blindness, unless D actually believes attendant circumstances do not exist)]
Recklessness: conscious disregard of a substantial and unjustifiable risk that [material element exists or will result from conduct] = gross deviation from SOC that law-abiding person
would observe in the D’s situation
Negligence: D should be aware of substantial and unjustifiable risk that…inadvertent gross deviation from the SOC that a reasonable person would observe in the actor’s situation.
Transferred: purposely or knowingly causes a result if the result differs only in respect to a person/property (same as CL)
Strict Liability- MPC abolishes this unless the if the violations for which imprisonment is never permitted
1-mentioned, applies to all (except attendant circumstances; in attempt all that’s necessary is mens rea of target offense)
None mentioned, default Recklessness. Any can be satisfied by a higher one.
Causation:
Actual: (CL+MPC): D is the actual cause of the prohibited offense is the result would not have occurred but for the D’s conduct (sine qua non)
Step 1: Identify the relevant conduct; (1)what are relevant voluntary acts, (2) if omission, substitute this word for voluntary
Step 2: Frame question properly: “But for the D’s voluntary acts, would the social harm have occurred when (and as) it did”
Multiple Shooters: If D-1 and D-2 shoot V; and both would have caused death but at different times; but they combine to kill the V quicker, they are both the actual cause (when it did,
accelerating):: neither would have caused death but combined they do: when and as it did.
Substantial Factor Test: If D-1 and D-2 mortally shot the V at the same time, neither is the actual cause New question, “Was the D’s conduct a substantial factor in resulting harm?”
Proximate (only CL): who should be liable for the harm? (D must have both)(also acts as direct cause when there are no other factors causing the social harm)(under MPC, folded
into mens rea requirement of foreseeability…was the result too remote to have a just bearing on the defendant’s culpability)
Intervening: (MPC) dispenses with CL factors; permits conviction of D who is an actual cause if not too remote or accidental in its occurrence… must have a just bearing on liability
Intervening: (CL) an actual cause of a social harm that arises after D’s causal contribution to the result; does not necessarily relieve D of liability
Dependent: if it occurs in response to the D’s earlier action Guilty unless intervening act was Unforeseeable (+) Freakish
Independent: If the factor would have come into play absent the D’s conductNot-Guilty unless intervening act was foreseeable to a reasonable person in D’s situation, e.g. neg. Dr.
Concurrence: The D must possess the mens rea when the actus reus was committed, though this can be stretched a little bit through time-framing
Defenses:
Failure-of-Proof Defenses: An essential element of the case is missing
Justification: ex. Self-Defense; indicates that the D’s conduct was affirmatively good, or at least, not wrongful [justification is universal, e.g. defense of third party]
Excuse: although the D committed the elements of the offense, and his actions were unjustified, he is not to blame for his conduct; e.g. Insanity [excuse is individual]
Mistake of Fact:
Specific Intent Offense (CL): Defense; not guilty if mistake of fact negates the specific intent element of the offense
General Intent (CL):Defense; if because of a (reasonable) mistake of fact, commits the actus reus with a morally blameless mindset  Guilty if mistake unreasonable
(Requirement of reasonableness of mistake lowers the required mens rea to mere negligence, e.g. if not knowing but unreasonable mistake, then guilty b/c of negligence)
Moral Wrong Doctrine: if the facts were as the actor believed them to be; and her conduct would still be immoral  Guilty for stricter offense
Legal Wrong Doctrine: substitutes “legal” for “immoral,” but applied in the same manner Guilty for stricter offense
Strict Liability (CL): Mistake of fact, whether reasonable or unreasonable, is never a defense to strict liability
(MPC): is a defense to a crime if the mistake negates a mental state element required in the definition of the offense
Legal Wrong Doctrine: same as common law, but only guilty of the lower offense
Mistake of Law:
(CL): generally, does not relieve an actor of liability for the commission of a criminal offense (certainty of the law, concern about fraud, promotes education of the law)
Authorized-Reliance Doctrine: not guilty if D, at the time of the offense, reasonably relied on an official statement of the law later determined to be erroneous
Due Process Clause: not guilty (rarely) when it offends due process to punish a person for a crime of which he was unaware at the time of this conduct (Lambert)
Scope the unknown offense prohibits an omission; must be based on status rather than activity; the offense is malum prohibitum (low state interest)
(MPC): A D is not guilty of an offense if his mistake of law, whether reasonable or unreasonable, negates an element of the crime charged
Self Defense (SD) and Defense of Another:
(CL): reasonably believes such force is necc. To protect from imminent, unlawful force by another person. (deadly only in response to deadly, but req. to use non-deadly 1st)
Aggressor Issue: An actor may not use SD if he is the aggressor (agg: person who commits an unlawful act calculated to produce injurious or fatal consequences)
Losing Aggressor Status: (Non-Deadly) may regain right to SD if responding to use of deadly force; (Deadly) if wholly abandoned and communicates fully, then can use SD
Imminent use of Unlawful Deadly Force: a non-aggressor may not use deadly force except to resist imminent use of unlawful deadly force.
Imminency: Force is not imminent unless it will occur immediately, instantly, or at once (threats at a later time do not work)
Unlawfulness of Deadly Force- a threat is not unlawful if it is justified (i.e. officer threatening to shoot if D does not drop weapon) Not guilty
Excusable Force: A threat is unlawful if it is unjustifiable, although excusable  (Insane person threatening to kill example)
Proportional Force: Deadly force is not permitted unless it is proportional to the force threatened
(CL Necessity): subject to the retreat exception, deadly force is not justified unless it is necessary
Retreat Rule: (Majority Rule) a non-aggressor may use deadly force to repel an unlawful imminent deadly attack, even if she is aware of a place to which she can retreat in
complete safety (Right should never yield to wrong; cowardly-unmanly; embolden aggressor-counter utilitarian)
(Minority Rule):A nonaggressor may not use deadly force to repel an attack if she knows of a completely safe place to retreat (absolutely subjectively aware)
Castle Exception: Even in retreat jurisdictions, a nonaggressor is not required to retreat from or in her home
(CL Reasonable Belief): a person may use deadly force in self-protection if he has reasonable grounds to believe (and believes) that he is in imminent danger or death or serious injr.
Imperfect Defense: use of deadly force is unjustifiable of the actor unreasonably believes that the self-defense is necessary
(CL Battered-Woman): non-traditional self-defense; a woman physically abused for years by husband (live-in partner), kills the abuser when not under imminent/immediate attack
(MPC Self-Protection): a person is justified in using deadly force when he believes that force is necessary to protect against unlawful deadly force, threat-rape/kidnapping
SUBJECTIVE TEST: if the actor believes the facts support reasonability, even if unreasonable it’s accepted except…
The justification defense is not available if the actor’s belief is reckless or negligent, and if the underlying charge is based on such a level of culpability
IMMEDIATELY NECESSARY: replaces immanency in the CL (focus on when the need arises)
Exceptions: defense is not permitted if the actor is the aggressor. However, same as CL with Non-Deadly initiation
Retreat – a nonaggressor must retreat if she knows that she can avoid the need to use deadly force with complete safety to herself.
(CL Defense of Another): a person is justified in using force to protect a third party from unlawful use of force by an aggressor (parallels the thirds party’s right to self defense)
Minority Rule: a person may only use force to defend a third party if the party being would in fact have been justified using the same degree force in SD. (alter ego, at risk)
(MPC Defense to Another): D is justified in using deadly force to protect X if four conditions are met:
(1) D’s right to self-protection: D would be justified in using force to protect himself, if the facts were as he believed them to be (in shoes)
(2) X’s right of self-protection: Under the facts as D believes them to be, X is justified in using such force in self-protection
(3) Necessity: D believes the intervention is necessary for the protection of X
(4) Retreat: if X would be required to retreat under the Code’s self-protection rules, D must try to cause him to do so before using deadly force (get X out of there)
Necessity:
(CL): a person whose conduct would otherwise constitute a crime acts justifiably if certain conditions are met.
ELEMENTS OF THE DEFENSE:
Lesser Evils: must be faced with a choice of evils, and he must choose the lesser of the two evils (the D’s belief is not sufficienttrial judge decides as a matter of law)
Imminency of Harm: must be responding to imminent harm (or at least that would appear to a reasonable person to be [imminent:] threatening to occur immediately)
Causal Element: The actor must reasonably anticipate that his actions will abate the threatened harm
Nonfault of the Actor: many courts and statutes provide that he actor must not be at fault in creating the necessity
HOMICIDE PROSECUTIONS: it is unclear whether the defense of necessity applies to the crime of murder (Regina v Dudley and Stephens)
Holding: it is never justifiable at common law to kill an innocent person, even in order to save a great number of lives  (1) Did the D’s act prematurely? (2) Was their
method of selection of who was to die morally objectionable? (3) Although the youth was sick, his death was not inevitable? (4) Would a more neutral selection make their
acts less culpable?
CIVIL DISOBEDIENCE: it is nearly impossible – as a matter of law- to successfully claim the defense in a case of indirect civil disobedienceviolation of a law, or
interfering with a governmental policy, that is not the object of the protest, in order to express personal opposition to another law or policy
(MPC): choice of evils elements
Belief Requirement: The actor must believe that his conduct is necessary to avoid harm to himself or another. Imminency of harm is not required
Balancing of Harms: the harm that the actor seeks to avoid must be greater than that sought to be avoided by the law prohibiting his conduct(homicide allowed if net benefit)
Legislative Intent: there must not plainly exist a legislative intent to exclude the justification claimed by the actor (hypodermic needle case leg intent could exonerate)
Fault of the Actor: if actor was reckless or negligent in bringing about the necessitous situation, the defense is unavailable in a prosecution if reck/negl can is suff to convict.
Duress: justification or excuse?  Most courts deem it an excuse!
(CL Elements of the Defense):
a. Nature of threat: D must prove that he was the victim of an unlawful threat to immediately kill or seriously injure him or another person (minor threat/harm will not suffice)
1. Reasonable Belief: actor reasonably believed that the threat was genuine.
2. Imminency- the deadly force that is threatened must be present, imminent, and impending. These words suggest that the threat must be operating on the actor’s will @ crim act
b. Absence of Reasonable Alternatives: to be excused, the coerced actor must reasonably believe that there is no way to avoid the harm threatened except to accede the threat
c. Nonfault of the Actor: (clean hands) The coerced actor must not be at fault for being in the coercive situation (joining a terrorist group will not excuse later coerced behavior)
d. Coerced Homicides: the duress defense does not apply to the offense of murder
(MPC ELEMENTS OF DEFENSE): unambiguously duress is an excuse! the defense may be raised although the D did not commit the lesser of two evils
A. Nature of Coercion: D must have been coerced to commit the crime by the use or threatened use of unlawful force by X, against him or another
a. It is not necessary that X ordered D to commit the offense for which he seeks to excuse. It is enough that X’s use of force or threat caused him to commit the crime
b. Any form of physical harm will suffice (threat to economic or status reputation will not suffice)
c. The duress defense does not apply unless the force is unlawful and must emanate from human Coercive nature of natural conditions will not suffice
B. Reasonable Firmness Test: A person of reasonable firmness in D’s situation would have been unable to resist the coercion (applicable in a homicide case) (perhaps inc. proport)
C. Blameworthiness of the coerced actor: the defense is unavailable to a person who recklessly place himself in the coercive situation. However, if he were negligent in doing so, he
may claim duress for all crimes except those based on negligence.
Intoxication: a disturbance of mental or physical capacities resulting from the ingestion of a foreign substance, such as alcohol or a drug
Involuntary
Intoxication is involuntary when…
A. Coercion: the actor is coerced to ingest the intoxicant, as when he is forced to drink alcohol or take a narcotic at gunpoint
B. Mistake: The actor becomes intoxicated because of an innocent mistake, such as when he unknowingly ingests an intoxicant
C. Pathological Intoxication MPC: suffers from “PI,” grossly disprptin. intox. in view of the amount of intox. ingested, and to which the actor does not know that he is susceptible
D. Prescribed Meds (CL): becomes unexpectedly intox. from ingestion of a medically prescribed drug, as when he suffers an unforeseeable allergic reaction to the medication
Involuntary Intoxication is a Defense when…
(1) Lack of Mens Rea MPC & CL: as a result of Invol. Intox., the actor lacked the requisite mental state of the offense for which he was charged
(2) Temporarily Insanity MPC & CL: due to Invol. Intox. the actor was temporarily insane at the time of the offense
Voluntary: is not a true defense to a crime; it serves as an anti-defense, it enhances rather than mitigates culpability
(CL): in most jurisdictions not guilty of a specific intent offense if, as the result of vol. intoxication lacked the capacity or failed to perform the specific intent required in the
offence (No gen. intent applies)
(MPC): does not distinguish between specific and general intent. Voluntary intoxication is a defense if it negates any element of the offense (recklessness does not apply)
Temporary Insanity due to voluntary intoxication is not a defense; Fixed Insanity: illness induced by long term abuse is sickness is a defense, if the illness not alcohol caused it
Alcoholism & Drug Addiction: intoxication that is the result of alcoholism or drug addiction is voluntary for purposes of the intoxication defense
Insanity: burden of proof is on the DEFENDANT…
M’Naughten Test: (majority rule) insane if laboring under a defect of the mind as (1) not to know the nature and quality of the act that he was doing, or, (2) if he did know, that he
did not know what he was doing was wrong
Irresistible Impulse Test: supplements the M’Naughten Test, supplement it with the Irr. Impls. test (volitional-based standard); insane if acts with irresistible/uncontrollable impulse
The Durham Product Test: a person is excused of an unlawful act that was the product of a mental disease or defect
Federal Test: is excused if he proves by clear/convincing evidence- as a result of severe mental disease/defect- unable to appreciate the nature/quality of wrongfulness
MPC: not responsible if result of mental disease/defect, lacked substantial capacity to (1) appreciate the criminality, or (2) to conform her conduct to the dictates of the law (16-7)
Diminished Capacity:
Mens Rea –Diminished Capacity Defense: a sane person may suffer from a mental disability that prevents him from forming the mental state of an offense
(MPC): whether permanent or temporary, if it negates the mens rea it is a defense
(CL): Only admitted as defense for specific intent crimes; NOT in general intent crimes
Attempt: gen def: occurs when a person, with intent to commit a criminal offense, engages in conduct that constitutes a substantial step toward the commission of the target offense
Grading: CL  attempt to commit a felony is a felony ;; MPC with the exception of inchoate offns. of 1st degree, MPC treats the attempt, solicitation, and conspiracy at targt. offen
Merger Doctrine: a criminal attempt merges into the target offense if it is successfully completed
Assault: a criminal assault is an attempt offense in disguise, but with different rules
(CL Assault): an attempted battery, however, the common law recognized assault as an offense before the crime of attempt was developed, so attempt doctrines do not apply to it;
Modern Statutes: most use the tort definition for assault.
(CL Mens Rea): First Intent, must intentionally commit the acts that constitute the actus reus of an attempt, bringing actor to dangerous proximity of completing target offense
Second: must commit the actus reus of an attempt with the specific intent to commit the target offense
MPC Mens Rea: Same purposely engages in conduct that would that would constitute the crime; or acts with purpose of causing the criminal result; or substantial step in furtherance
(CL Actus Reus): Dangerous Prox. Test: so near to the result that danger of success is very great: (1) nearness of danger, (2) greatness of harm, (3) degree of apprehension felt
CL: mere preparation not enough
MPC Actus Reus: substantial step standard must be corroborative of the actor’s criminal purpose

DEFENSE: IMPOSSIBILITY: CL distinguishes between factual and legal impossibility (legal = defense; factual is NOT a defense)
(CL Fact. Imps.): When an actor’s intended end constitutes a crime, but she fails to complete because of a factual circumstance unknown-to/beyond her control. NOT Defense.
(CL Legal Imps.):Pure, engages in lawful conduct which is believed a crime;
Hybrid: goal is illegal but imposs. due to mistake by D regarding legal status of factual circ., e.g. receive “stolen goods” not “stolen.” Arg. legal: Defense. Arg. factual: NOT Defense.
MPC: guilty if conduct would constitute the crime if the attendant circumstance were as D believes them to be; if Factual, Hybrid  Guilty
CL: if impossibility Legal, Hybrid  Acquitted
DEFENSE: ABANDONMENT
(CL Abandonment): did not recognize the defense; a person cannot undo that harm
MPC Abandonment: renunciation of crim. purpose; not guilty if (1) abandons and (2) conduct manifests a complete and voluntary renunciation (NOT caught, difficult, detection)
Solicitation:
General CL: if he intentionally invites, requests, commands, or encourages another person to engage in conduct consisting a crime involving breach or peace of obstruction of justice
General MPC: (broader) solicitation to commit any misdemeanor or felony; (grading) same as other inchoate offns. (merger) also same
(CL Actus Reus): solicitation does not occur unless the words are successfully communicated to the solicited party and must ask the person to perpetrate the offense himself
MPC AcRs: Even if solicitation is unsuccessful, STILL guilty of solicitation and is also guilty if he asks for involvement what would establish a person’s complicity in the offense
(CL Mens Rea): SOL. is a spec. intent crime. Must solicit with the spec. intent that the person commit the target offense
MPC Mens Rea: is not guilty unless he acts with the purpose of promoting or facilitating the commission of the solicited offense
DEFENSE: ABANDONMENT
MPC: not guilty (1) completely & voluntarily renounce crim intent and (2) succ. persuades/prevents the solicited party not to commit crime. Take my ball, you shouldn’t play either.
CL: NO Defense.
Conspiracy: MPC: object must be illegal, also unilateral, punished for most severe crime if multiple pursuant;; CL: only need to be morally wrongful act, bilateral.
(CL): usually graded as a lesser offense than target crime, but can be same;; (MPC): anything other than 1st degree felony is the same as the target offense
(CL Merger): Does not merge with the target offense;; can be convicted of both crimes!
MPC Merger: may not be convicted of both unless the conspiracy involves a continuing course of conduct
(CL AR): conspiracy is committed as soon as the agreement is made; no act in furtherance is required;; Or, some require that at least one party must act and any act will do
MPC AR: an overt act is required except for felonies of the first and second degree (because they’re so dangerous)
(CL MR): is a specific intent crime; parties must intend to agree and intend that the objects of their agreement be achieved
MPC MR: is not guilty of conspiracy unless he acts with the purpose of promoting or facilitating the commission of the conduct that constitutes a crime
Purpose v Knowledge: MPC requires purpose ;; CL courts are split, some require purpose/knowledge
Plurality: MPC only a unilateral requirement ;; CL two or more
Structure of Conspiracies: Wheel: center actor with independent connectors; Chain: interdependent in 1 conspr.; Chain Wheel: sometimes a chain and a wheel, interdependent
Multiple Objects: CL: as many or as few conspr. as agreements made; MPC: only 1 conspr. even if they have multiple criminal objectives if it is part of the same agreement
PINKERTON RULE: (CL): A way to prove complicity because actors are in a conspiracy (object or reas. foreseeable consequence of consp.) (MPC rejects)
DEFENSE: WHARTON RULE: if by def. it requires two people=no conspiracy ;; X+1 =CONSPR.
DEFENSE: BRAVERMAN RULE: (CL) 1 scheme = 1 count.
DEFENSE: Legislative Exemption Rule: CL and MPC a person may not be prosecuted for conspiracy that is intended to protect that person (Stat. Rape)
DEFENSE: ABANDONMENT: MPC not guilty if renounces purpose and thwarts the success in a voluntary and complete way
Complicity:
(CL): intentionally assists another person to engage in the conduct that constitutes the offense; Agency theory or Forfeiture of Identity theory
CL Accomplice Liability: no longer law but language is still used by judges
Prin. in 1st Degree: person with requisite mens rea commits the offense
Prin. in 2nd Degree: person who intentionally assists the principle in the 1st degree
Accessory Before the Fact: the one who intentionally assists in the commission of the offense, but is not actually or constructively present during the commission
Accessory After the Fact: the one who knowingly assists a felon to avoid arrest, trial, conviction. Treated differently, less seriously than the top 3.
ACCOMPLICE LIABILITY: ASSISTANCE, with req. mens rea, assists the primary party through phys. conduct, psych influence (solicit, incite, encour), or legal duty + omission.
-CL presence alone is insufficient, but very little is necessary to be accomplice. Wholly ineffectual assistance = NOT accomplice, e.g. open window, P uses door.
-Trivial Assistance: If assisted in any way, then degree of aid/influence is immaterial, and suffices to est. accomplice liability. (e.g. req. mens rea + applauding, feeds, morale)
-Causation: derivative liability, causation est. by proof principal caused the social harm. Irrelevant that principal would have succeeded/committed crime w/o aid.
CL Mens Rea: 1) intent assist primary party to eng. in conduct basis of offense & 2) mental state required for commission of offense as prov. in the defin. of sub. crime.
Legislative exemp. APPLIES (e.g. contrib. to delinquency of minor)
-Pinkerton Doctrine: a co-conspirator is responsible for any criminal act committed by another member of the conspiracy, if the offense was an object of the conspiracy or was a
reasonable foreseeable consequence thereof.
MPC: Innocent-Instrumentality Doctrine guilty even if used an innocent party to commit the crime, innocent party is not guilty
Accomplice Liability guilty of crime D did not actually commit, but was accomplice to. NOT liable for Pinkerton (prob. & foreseeable crimes), if not accomplice.
-Def. of Accomplice: MPC: a. solicit the offense b, aid, agree to aid, or attempt to aid, c. fail to make a proper effort to prevent commission (if he has a legal duty to act)
The MPC “agree to aid” approach has greater liability than the CL but less than the Pinkerton doctrine; agree to aid does not require successful completion like CL
The MPC mens rea requires he must act with purpose of promoting or facilitating the commission of the offense
If principal stopped before qualifying as attempt, MPC holds accomplice liable for attempt.
Limits: The MPC applies the Legislative Exmpt. Rule; Inevitable-Incidence; Abandonment: 1)neutralizes assistance 2)gives timely warning to 5.0 3) prevents crime
MPC MR: Requires Purpose or, sometimes, Knowledge + Offer of Material Aid (can be met with legal duty + omission), if it indicates intent to facilitate the commission of the target
offense: factors: normal sale/activity? Inflated price, illegal? Expertise? Percent of business illegal? Legitimate uses of service/product? Seriousness of crime? Stake in the enterprise?
Theft: is the trespassory taking and carrying away of the personal property of another with the intent to permanently deprive the other person of the property
Rape: CL: penetration of vagina, forcibly against her will marital exmpt ;; MPC: a male who has sex with female, not wife, against her will and without consent
Modern CL: sexual assault (all forms); some states have abolished marital exmpt.