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MODEL PENAL CODE
1.02. Purposes; Principles of Construction
(1) The general purposes of the provisions governing
the definition of offenses are:
(a) to forbid and prevent
conduct that unjustifiably and inexcusably inflicts or threatens substantial harm to
individual or public interests;
(b) to subject to public
control persons whose conduct indicates that they are disposed to commit crimes;
(c) to safeguard conduct that
is without fault from condemnation as criminal;
(d) to give fair warning of
the nature of the conduct declared to constitute an offense;
(e) to differentiate on
reasonable grounds between serious and minor offenses.
(2) The general purposes of the provisions governing
the sentencing and treatment of offenders are:
(a) to prevent the commission
of offenses;
(b) to promote the correction
and rehabilitation of offenders;
(c) to safeguard offenders
against excessive, disproportionate or arbitrary punishment;
(d) to give fair warning of
the nature of the sentences that may be imposed on conviction of an offense;
(e) to differentiate among
offenders with a view to a just individualization in their treatment;
(f) to define, coordinate and
harmonize the powers, duties and functions of the courts and of administrative officers
and agencies responsible for dealing with offenders;
(g) to advance the use of
generally accepted scientific methods and knowledge in the sentencing and treatment of
offenders;
(h) to integrate
responsibility for the administration of the correctional system in a State Department of
Correction [or other single department or agency].
(3) The provisions of the Code shall be construed
according to the fair import of their terms but when the language is susceptible of
differing constructions it shall be interpreted to further the general purposes stated in
this Section and the special purposes of the particular provision involved. The
discretionary powers conferred by the Code shall be exercised in accordance with the
criteria stated in the Code and, insofar as such criteria are not decisive, to further the
general purposes stated in this Section.
1.04. Classes of Crimes; Violations
(1) An offense defined by this Code or by any other
statute of this State, for which a sentence of [death or of] imprisonment is authorized,
constitutes a crime. Crimes are classified as felonies, misdemeanors or petty
misdemeanors.
(2) A crime is a felony if it is so designated in
this Code or if the persons convicted thereof may be sentenced [to death or] to
imprisonment for a term that, apart from an extended term, is in excess of one year.
(3) A crime is a misdemeanor if it is so designated
in this Code or in a statute other than this Code enacted subsequent thereto.
(4) A crime is a petty misdemeanor if it is so
designated in this Code or in a statute other than this Code enacted subsequent thereto or
if it is defined by a statute other than this Code that now provides that persons
convicted thereof may be sentenced to imprisonment for a term of which the maximum is less
than one year.
(5) An offense defined by this Code or by any other
statute of this State constitutes a violation if it is so designated in this Code or in
the law defining the offense or if no other sentence than a fine, or fine and forfeiture
or other civil penalty is authorized upon conviction or if it is defined by a statute
other than this Code that now provides that the offense shall not constitute a crime. A
violation does not constitute a crime and conviction of a violation shall not give rise to
any disability or legal disadvantage based on conviction of a criminal offense.
(6) Any offense declared by law to constitute a
crime, without specification of the grade thereof or of the sentence authorized upon
conviction, is a misdemeanor.
(7) An offense defined by any statute of this State
other than this Code shall be classified as provided in this Section and the sentence that
may be imposed upon conviction thereof shall hereafter be governed by this Code.
1.05. All Offenses Defined by Statute; Application of General Provisions of the Code
(1) No conduct constitutes an offense unless it is a
crime or violation under this Code or another statute of this State.
1.13 General Definitions
In this Code, unless a different meaning plainly is required:
(1) "statute" includes the Constitution and
a local law or ordinance of a political subdivision of the State;
(2) "act" or "action" means a
bodily movement whether voluntary or involuntary;
(3) "voluntary" has the meaning specified
in Section 2.01;
(4) "omission" means a failure to act;
(5) "conduct" means an action or omission
and its accompanying state of mind, or, where relevant, a series of acts and omissions;
(6) "actor" includes, where relevant, a
person guilty of an omission;
(7) "acted" includes, where relevant,
"omitted to act";
(8) "person," "he" and
"actor" include any natural person and, where is relevant, a corporation or an
unincorporated association;
(9) "element of an offense" means (i) such
conduct or (ii) such attendant circumstances or (iii) such a result of conduct as
(a) is included in the
description of the forbidden conduct in the definition of the offense; or
(b) establishes the required
kind of culpability; or
(c) negatives an excuse or
justification for such conduct; or
(d) negatives a defense under
the statute of limitations; or
(e) establishes jurisdiction
or venue;
(10) "material element of an offense" means
an element that does not relate exclusively to the statute of limitations, jurisdiction,
venue or to any other matter similarly unconnected with (i) the harm or evil, incident to
conduct, sought to be prevented by the law defining the offense, or (ii) the existence of
a justification or excuse for such conduct;
(11) "purposely" has the meaning specified
in Section 2.02 and equivalent terms such as "with purpose,"
"designed" or "with design" have the same meaning;
(12) "intentionally" or "with
intent" means purposely;
(13) "knowingly" has the meaning specified
in Section 2.02 and equivalent terms such as "knowing" or "with
knowledge" have the same meaning;
(14) "recklessly" has the meaning specified
in Section 2.02 and equivalent terms such as "recklessness" or "with
recklessness" have the same meaning;
(15) "negligently" has the same meaning
specified in Section 2.02 and equivalent terms such as "negligence" or
"with negligence" have the same meaning;
(16) "reasonably believes" or
"reasonable belief" designates a belief which the actor is not reckless or
negligent in holding. Article 2. General Principles of Liability
2.01. Requirement of Voluntary Act; Omission as Basis of Liability; Possession as an Act
(1) A person is not guilty of an offense unless his
liability is based on conduct which includes a voluntary act or the omission to perform an
act of which he is physically capable.
(2) The following are not voluntary acts within the
meaning of this Section:
(a) a reflex or convulsion;
(b) a bodily movement during
unconsciousness or sleep;
(c) conduct during hypnosis
or resulting from hypnotic suggestion;
(d) a bodily movement that
otherwise is not a product of the effort or determination of the actor, either conscious
or habitual.
(3) Liability for the commission of an offense may
not be based on an omission unaccompanied by action unless:
(a) the omission is expressly
made sufficient by the law defining the offense; or
(b) a duty to perform the
omitted act is otherwise imposed by law.
(4) Possession is an act, within the meaning of this
Section, if the possessor knowingly procured or received the thing possessed or was aware
of his control thereof for a sufficient period to have been able to terminate his
possession.
2.02. General Requirements of Culpability
(1) Minimum Requirements of Culpability. Except as
provided in Section 2.05, a person is not guilty of an offense unless he acted purposely,
knowingly, recklessly or negligently, as the law may require, with respect to each
material element of the offense.
(2) Kinds of Culpability Defined.
(a) Purposely. A person acts
purposely with respect to a material element of an offense when:
(i)
if the element involves the nature of his conduct or a result thereof, it is his conscious
object to engage in conduct of that nature or to cause such a result; and
(ii)
if the element involves the attendant circumstances, he is aware of the existence of such
circumstances or he believes or hopes that they exist.
(b) Knowingly. A person acts
knowingly with respect to a material element of an offense when:
(i)
if the element involves the nature of his conduct or the attendant circumstances, he is
aware that his conduct is of that nature or that such circumstances exist; and
(ii)
if the element involves a result of his conduct, he is aware that it is practically
certain that his conduct will cause such a result.
2.02. General Requirements of Culpability
(1) Minimum Requirements of Culpability. Except as
provided in Section 2.05, a person is not guilty of an offense unless he acted purposely,
knowingly, recklessly or negligently, as the law may require, with respect to each
material element of the offense.
(2) Kinds of Culpability Defined.
(a) Purposely. A person acts
purposely with respect to a material element of an offense when:
(i)
if the element involves the nature of his conduct or a result thereof, it is his conscious
object to engage in conduct of that nature or to cause such a result; and
(ii)
if the element involves the attendant circumstances, he is aware of the existence of such
circumstances or he believes or hopes that they exist.
(b) Knowingly. A person acts
knowingly with respect to a material element of an offense when:
(i)
if the element involves the nature of his conduct or the attendant circumstances, he is
aware that his conduct is of that nature or that such circumstances exist; and
(ii)
if the element involves a result of his conduct, he is aware that it is practically
certain that his conduct will cause such a result.
(c) Recklessly. A person acts
recklessly with respect to a material element of an offense when he consciously disregards
a substantial and unjustifiable risk that the material element exists or will result from
his conduct. The risk must be of such a nature and degree that, considering the nature and
purpose of the actor's conduct and the circumstances known to him, its disregard involves
a gross deviation from the standard of conduct that a law-abiding person would observe in
the actor's situation.
(d) Negligently. A person
acts negligently with respect to a material element of an offense when he should be aware
of a substantial and unjustifiable risk that the material element exists or will result
from his conduct. The risk must be of such a nature and degree that the actor's failure to
perceive it, considering the nature and purpose of his conduct and the circumstances known
to him, involves a gross deviation from the standard of care that a reasonable person
would observe in the actor's situation.
(3) Culpability Required Unless Otherwise Provided.
When the culpability sufficient to establish a material element of an offense is not
prescribed by law, such element is established if a person acts purposely, knowingly or
recklessly with respect thereto.
(4) Prescribed Culpability Requirement Applies to All
Material Elements. When the law defining an offense prescribes the kind of culpability
that is sufficient for the commission of an offense, without distinguishing among the
material elements thereof, such provision shall apply to all the material elements of the
offense, unless a contrary purpose plainly appears.
(5) Substitutes for Negligence, Recklessness and
Knowledge. When the law provides that negligence suffices to establish an element of an
offense, such element also is established if a person acts purposely, knowingly or
recklessly. When recklessness suffices to establish an element, such element also is
established if a person acts purposely or knowingly. When acting knowingly suffices to
establish an element, such element is also established if a person acts purposely.
(6) Requirement of Purpose Satisfied if Purpose Is
Conditional. When a particular purpose is an element of an offense, the element is
established although such purpose is conditional, unless the condition negatives the harm
or evil sought to be prevented by the law defining the offense.
(7) Requirement of Knowledge Satisfied by Knowledge
of High Probability. When knowledge of the existence of a particular fact is an element of
an offense, such knowledge is established if a person is aware of a high probability of
its existence, unless he actually believes that it does not exist.
(8) Requirement of Wilfulness Satisfied by Acting
Knowingly. A requirement that an offense be committed wilfully is satisfied if a person
acts knowingly with respect to the material elements of the offense, unless a purpose to
impose further requirements appears.
(9) Culpability as to Illegality of Conduct. Neither
knowledge nor recklessness or negligence as to whether conduct constitutes an offense or
as to the existence, meaning or application of the law determining the elements of an
offense is an element of such offense, unless the definition of the offense or the Code so
provides.
(10) Culpability as Determinant of Grade of Offenses.
When the grade or degree of an offense depends on whether the offense is committed
purposely, knowingly, recklessly or negligently, its grade or degree shall be the lowest
for which the determinative kind of culpability is established with respect to any
material element of the offense.
2.03. Causal Relationship Between Conduct and Result; Divergence Between Result Designed
or Contemplated and Actual Result or Between Probable and Actual Result.
(1) Conduct is the cause of a result when:
(a) it is an antecedent but
for which the result in question would not have occurred; and
(b) the relationship between
the conduct and result satisfies any additional causal requirements imposed by the Code or
by the law defining the offense.
(2) When purposely or knowingly causing a particular
result is an element of an offense, the element is not established if the actual result is
not within the purpose or the contemplation of the actor unless:
(a) the actual result differs
from that designed or contemplated, as the case may be, only in the respect that a
different person or different property is injured or affected or that the injury or harm
designed or contemplated would have been more serious or more extensive than that caused;
or
(b) the actual result
involves the same kind of injury or harm as that designed or contemplated and is not too
remote or accidental in its occurrence to have a [just] bearing on the actor's liability
or on the gravity of his offense.
(3) When recklessly or negligently causing a
particular result is an element of an offense, the element is not established if the
actual result is not within the risk of which the actor is aware or, in the case of
negligence, of which he should be aware unless:
(a) the actual result differs
from the probable result only in the respect that a different person or different property
is injured or affected or that the probable injury or harm would have been more serious or
more extensive than that caused; or
(b) the actual result
involves the same kind of injury or harm as the probable result and is not too remote or
accidental in its occurrence to have a [just] bearing on the actor's liability or on the
gravity of his offense.
(4) When causing a particular result is a material
element of an offense for which absolute liability is imposed by law, the element is not
established unless the actual result is a probable consequence of the actor's conduct.
2.04. Ignorance or Mistake.
(1) Ignorance or mistake as to a matter of fact or
law is a defense if:
(a) the ignorance or mistake
negatives the purpose, knowledge belief, recklessness or negligence required to establish
a material element of the offense; or
(b) the law provides that the
state of mind established by such ignorance or mistake constitutes a defense.
(2) Although ignorance or mistake would otherwise
afford a defense to the offense charged, the defense is not available if the defendant
would be guilty of another offense had the situation been as he supposed. In such case,
however, the ignorance or mistake of the defendant shall reduce the grade and degree of
the offense of which he may be convicted to those of the offense of which he would be
guilty had the situation been as he supposed.
(3) A belief that conduct does not legally constitute
an offense is a defense to a prosecution for that offense based upon such conduct when:
(a) the statute or other
enactment defining the offense is not known to the actor and has not been published or
otherwise reasonably made available prior to the conduct alleged; or
(b) he acts in reasonable
reliance upon an official statement of the law, afterward determined to be invalid or
erroneous, contained in
(i) a
statute or other enactment;
(ii)
a judicial decision, opinion or judgment;
(iii)
an administrative order or grant of permission; or
(iv)
an official interpretation of the public officer or body charged by law with the
responsibility for the interpretation, administration or enforcement of the law defining
the offense.
(4) The defendant must prove a defense arising under
Subsection (3) of this Section by a preponderance of the evidence.2.05. When
Culpability Requirements are Inapplicable to Violations and to Offenses Defined by Other
Statutes; Effect of Absolute Liability in Reducing Grade of Offense to Violation.
(1) The requirements of culpability prescribed by
Sections 2.01 and 2.02 do not apply to:
(a) offenses which constitute
violations, unless the requirement involved is included in the definition of the offense
or the Court determines that its application is consistent with effective enforcement of
the law defining the offense; or
(b) offenses defined by
statutes other than the Code, insofar as a legislative purpose to impose absolute
liability for such offenses or with respect to any material element thereof plainly
appears.
(2) Notwithstanding any other provision of existing
law and unless a subsequent statute otherwise provides:
(a) when absolute liability
is imposed with respect to any material element of an offense defined by a statute other
than the Code and a conviction is based upon such liability, the offense constitutes a
violation; and
(b) although absolute
liability is imposed by law with respect to one or more of the material elements of an
offense defined by a statute other than the Code, the culpable commission of the offense
may be charged and proved, in which event negligence with respect to such elements
constitutes sufficient culpability and the classification of the offense and the sentence
that may be imposed therefor upon conviction are determined by Section 1.04 and Article 6
of the Code.
2.08. Intoxication
(1) Except as provided in Subsection (4) of this
Section, intoxication of the actor is not a defense unless it negatives an element of the
offense.
(2) When recklessness establishes an element of the
offense, if the actor, due to self-induced intoxication, is unaware of a risk of which he
would have been aware had he been sober, such unawareness is immaterial.
(3) Intoxication does not, in itself, constitute
mental disease within the meaning of Section 4.01.
(4) Intoxication that (a) is not self-induced or (b)
is pathological is an affirmative defense if by reason of such intoxication the actor at
the time of his conduct lacks substantial capacity either to appreciate its criminality
[wrongfulness] or to conform his conduct to the requirements of the law.
(5) Definitions. In this Section unless a different
meaning plainly is required:
(a) "intoxication' means
a disturbance of mental or physical capacities resulting from the introduction of
substances into the body;
(b) "self-induced
intoxication" means intoxication caused by substances which the actor knowingly
introduces into his body, the tendency of which to cause intoxication he knows or ought to
know, unless he introduces them pursuant to medical advice or under such circumstances as
would afford a defense to a charge of crime;
(c) "pathological
intoxication" means intoxication grossly excessive in degree, given the amount of the
intoxicant, to which the actor does not know he is susceptible.
3.04. Use of Force in Self-Protection
(1) Use of Force Justifiable for Protection of the
Person. Subject to the provisions of this Section and of Section 3.09, the use of force
upon or toward another person is justifiable when the actor believes that such force is
immediately necessary for the purpose of protecting himself against the use of unlawful
force by such other person on the present occasion.
(2) Limitations on Justifying Necessity for Use of
Force.
(a) The use of force is not
justifiable under this Section:
(i)
to resist an arrest that the actor knows is being made by a peace officer, although the
arrest is unlawful; or
(ii)
to resist force used by the occupier or possessor of property or by another person on his
behalf, where the actor knows that the person using the force is doing so under a claim of
right to protect the property, except that this limitation shall not apply if:
(1) the actor is a public officer acting in the performance of his
duties or a person lawfully assisting him therein or a person making or assisting in a
lawful arrest; or
(2) the actor has been unlawfully dispossessed of the property and is
making a re-entry or recaption justified by Section 3.06; or
(3) the actor believes that such force is necessary to protect himself
against death or serious bodily harm.
(b) The use of deadly force
is not justifiable under this Section unless the actor believes that such force is
necessary to protect himself against death, serious bodily harm, kidnapping or sexual
intercourse compelled by force or threat; nor is it justifiable if:
(i)
the actor, with the purpose of causing death or serious bodily injury, provoked the use of
force against himself in the same encounter; or
(ii)
the actor knows that he can avoid the necessity of using such force with complete safety
by retreating or by surrendering possession of a thing to a person asserting a claim of
right thereto or by complying with a demand that he abstain from any action that he has no
duty to take, except that:
(1) the actor is not obliged to retreat from his dwelling or place of
work, unless he was the initial aggressor or is assailed in his place of work by another
person whose place of work the actor knows it to be; and
(2) a public officer justified in using force in the performance of his
duties or a person justified in using force in his assistance or a person justified in
using force in making an arrest or preventing an escape is not obliged to desist from
efforts to perform such duty, effect such arrest or prevent such escape because of
resistance or threatened resistance by or on behalf of the person against whom such action
is directed.
(c) Except as required by
paragraphs (a) and (b) of this Subsection, a person employing protective force may
estimate the necessity thereof under the circumstances as he believes them to be when the
force is used, without retreating, surrendering possession, doing any other act which he
has no legal duty to do or abstaining from any lawful action.
(3) Use of Confinement as Protective Force. The
justification afforded by this Section extends to the use of confinement as protective
force only if the actor takes all reasonable measures to terminate the confinement as soon
as he knows that he safely can, unless the person confined has been arrested on a charge
of crime.
ARTICLE 5. INCHOATE CRIMES
5.01. Criminal Attempt
(1) Definition of Attempt. A person is guilty of an
attempt to commit a crime if, acting with the kind of culpability otherwise required for
commission of the crime, he:
(a) purposely engages in
conduct that would constitute the crime if the attendant circumstances were as he believes
them to be; or
(b) when causing a particular
result is an element of the crime, does or omits to do anything with the purpose of
causing or with the belief that it will cause such result without further conduct on his
part; or
(c) purposely does or omits
to do anything which, under the circumstances as he believes them to be, is an act or
omission constituting a substantial step in a course of conduct planned to culminate in
his commission of the crime.
(2) Conduct Which May be Held Substantial Step Under
Subsection (1)(c). Conduct shall not be held to constitute a substantial step under
Subsection (1)(c) of this Section unless it is strongly corroborative of the actor's
criminal purpose. Without negativing the sufficiency of other conduct, the following, if
strongly corroborative if the actor's criminal purpose, shall not be held insufficient as
a matter of law:
(a) lying in wait, searching
for or following the contemplated victim of the crime;
(b) enticing or seeking to
entice the contemplated victim of the crime to go to the place contemplated for its
commission;
(c) reconnoitering the place
contemplated for the commission of the crime;
(d) unlawful entry of a
structure, vehicle or enclosure in which it is contemplated that the crime will be
committed;
(e) possession of materials
to be employed in the commission of the crime, that are specially designed for such
unlawful use or which can serve no lawful purpose of the actor under such circumstances;
(f) possession, collection or
fabrication of materials to be employed in the commission of the crime, at or near the
place contemplated for its commission, where such possession, collection or fabrication
serves no lawful purpose of the actor under the circumstances;
(g) soliciting an innocent
agent to engage in conduct constituting an element of the crime.
(3) Conduct Designed to Aid Another in Commission of
a Crime. A person who engages in conduct designed to aid another to commit a crime that
would establish his complicity under Section 2.06 if the crime were committed by such
other person, is guilty of an attempt to commit the crime, although the crime is not
committed or attempted by such other person.
(4) Renunciation of Criminal Purpose. When the
actor's conduct would otherwise constitute an attempt under Subsection (1)(b) or (1)(c) of
this Section, it is an affirmative defense that he abandoned his effort to commit the
crime or otherwise prevented its commission, under circumstances manifesting a complete
and voluntary renunciation of his criminal purpose. The establishment of such defense does
not, however, affect the liability of an accomplice who did not join in such abandonment
or prevention.
Within the meaning of
this Article, renunciation of criminal purpose is not voluntary if it is motivated, in
whole or in part, by circumstances, not present or apparent at the inception of the
actor's course of conduct, that increase the probability of detection or apprehension or
which make more difficult the accomplishment of the criminal purpose. Renunciation is not
complete if it is motivated by a decision to postpone the criminal conduct until a more
advantageous time or to transfer the criminal effort to another but similar objective or
victim.
OFFENSES INVOLVING DANGER TO THE PERSON
ARTICLE 210. CRIMINAL HOMICIDE
210.0. Definitions
In Articles 210-213, unless a different meaning plainly is required:
(1) "human being" means a person who has
been born and is alive;
(2) "bodily injury" means physical pain,
illness or any impairment of physical condition;
(3) "serious bodily injury" means 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;
(4) "deadly weapon" means any firearm or
other weapon, device, instrument, material or substance, whether animate or inanimate,
which in the manner it is used or is intended to be used is known to be capable of
producing death or serious bodily injury.210.1. Criminal Homicide
(1) A person is guilty of criminal homicide if he
purposely, knowingly, recklessly or negligently causes the death of another human being.
(2) Criminal homicide is murder, manslaughter or
negligent homicide.
210.2. Murder
(1) Except as provided in Section 210.3(1)(b),
criminal homicide constitutes murder when:
(a) it is committed purposely
or knowingly; or
(b) it is committed
recklessly under circumstances manifesting extreme indifference to the value of human
life. Such recklessness and indifference are presumed if the actor is engaged or is an
accomplice in the commission of, or an attempt to commit, or flight after committing or
attempting to commit robbery, rape or deviate sexual intercourse by force or threat of
force, arson, burglary, kidnapping or felonious escape.
(2) Murder is a felony of the first degree [but a
person convicted of murder may be sentenced to death, as provided in Section 210.6].
210.3. Manslaughter
(1) Criminal homicide constitutes manslaughter when:
(a) it is committed
recklessly; or
(b) a homicide which would
otherwise be murder is committed under the influence of extreme mental or emotional
disturbance for which there is a reasonable explanation or excuse. The reasonableness of
such explanation or excuse shall be determined from the viewpoint of a person in the
actor's situation under the circumstances as he believes them to be.
(2) Manslaughter is a felony of the second degree.
210.4. Negligent Homicide
(1) Criminal homicide constitutes negligent homicide
when it is committed negligently.
(2) Negligent homicide is a felony of the third
degree.
ARTICLE 213. SEXUAL OFFENSES
213.0. Definitions
In this Article, unless a different meaning plainly is required:
(1) the definitions given in Section 210.0 apply:
(2) "Sexual intercourse" includes
intercourse per os or per anum, with some penetration however slight; emission is not
required;
(3) "Deviate sexual intercourse" means
sexual intercourse per os or per anum between human beings who are not husband and wife,
and any form of sexual intercourse with an animal.
213.1 Rape and Related Offenses.
(1) Rape. A male who has sexual intercourse with a
female not his wife is guilty of rape if:
(a) he compels her to submit
by force or by threat of imminent death, serious bodily injury, extreme pain or
kidnapping, to be inflicted on anyone; or
(b) he has substantially
impaired her power to appraise or control her conduct by administering or employing
without her knowledge drugs, intoxicants or other means for the purpose of preventing
resistance; or
(c) the female is
unconscious; or
(d) the female is less than
10 years old.
Rape is a felony of the second degree unless
(i) in the course thereof the actor inflicts serious bodily injury upon anyone, or (ii)
the victim was not a voluntary social companion of the actor upon the occasion of the
crime and had not previously permitted him sexual liberties, in which case the offense is
a felony of the first degree.
(2) Gross Sexual Imposition. A male who has sexual
intercourse with a female not his wife commits a felony of the third degree if:
(a) he compels her to submit
by any threat that would prevent resistance by a woman of ordinary resolution; or
(b) he knows that she suffers
from a mental disease or defect which renders her incapable of appraising the nature of
her conduct; or
(c) he knows that she is
unaware that a sexual act is being committed upon her or that she submits because she
mistakenly supposes that he is her husband.
213.6. Provisions Generally Applicable to Article 213.
(1) Mistake as to Age. Whenever in this Article the
criminality of conduct depends on a child's being below the age of 10, it is no defense
that the actor did not know the child's age, or reasonably believed the child to be older
than 10. When criminality depends on the child's being below a critical age other than 10,
it is a defense for the actor to prove by a preponderance of the evidence that he
reasonably believed the child to be above the critical age.
(2) Spouse Relationships. Whenever in this Article
the definition of an offense excludes conduct with a spouse, the exclusion shall be deemed
to extend to persons living as man and wife, regardless of the legal status of their
relationship. The exclusion shall be inoperative as respects spouses living apart under a
decree of judicial separation. Where the definition of an offense excludes conduct with a
spouse or conduct by a woman, this shall not preclude conviction of a spouse or woman as
accomplice in a sexual act which he or she causes another person, not within the
exclusion, to perform.
(3) Sexually Promiscuous Complainants. It is a
defense to prosecution under Section 213.3, and paragraphs (6), (7) and (8) of Section
213.4 for the actor to prove by a preponderance of the evidence that the alleged victim
had, prior to the time of the offense charged, engaged promiscuously in sexual relations
with others.
(4) Prompt Complaint. No prosecution may be
instituted or maintained under this Article unless the alleged offense was brought to the
notice of public authority within three months of its occurrence or, where the alleged
victim was less than sixteen years old or otherwise incompetent to make complaint, within
three months after a parent, guardian or other competent person specially interested in
the victim learns of the offense.
(5) Testimony of Complainants. No person shall be
convicted of any felony under this Article upon the uncorroborated testimony of the
alleged victim. Corroboration may be circumstantial. In any prosecution before a jury for
an offense under this Article, the jury shall be instructed to evaluate the testimony of a
victim or complaining witness with special care in view of the emotional involvement of
the witness and the difficulty of determining the truth with respect to alleged sexual
activities carried out in private.
