State v. Beeny , 115 Utah 168 ( 1949 )


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  • In my opinion, this case hinges on whether it is possible for a man to commit an assault on a woman in accomplishing sexual intercourse with her and still not commit rape. That question must be answered in the affirmative. In order to commit rape there must not only be intercourse with a woman against her will and without her consent, but the woman must resist such act with such force as she is reasonably capable of making under the surrounding circumstances and conditions and her resistance must be overcome with force or violence. In order to accomplish a battery, no resistance is necessary as long as it is clear to the person committing the offense that the offended person does not consent thereto. A woman may not consent to the advances of a man and offer some resistance but if she fails to offer all the resistance that she reasonably can under the circumstances, and does not persist in resisting as long as she reasonably can, even though the act is accomplished against her will and without her consent, she has not been raped but a battery might well have occurred. As long as force is applied to a person against her will and without her consent even though the force is not great and there is no active resistance there is a battery, but in order to commit rape there must be active resistance which is overcome by force or violence. So a battery may occur in accomplishing intercourse without rape.

    Here, intercourse was admitted and the jury was instructed that in order to find the defendants guilty of rape they must find that intercourse was accomplished against her will and without her consent, and that she resisted all that she reasonably could but such resistance was overcome by "force or violence." Later, the court instructed that battery *Page 176 was an included offense and that before they could find a battery they must find that the defendants used "force and violence" on the person of the woman. The court required in both cases the use of "force or violence" in order to accomplish the offense, but did not require intercourse in case of a battery. Apparently, the jury thought the distinction between the two offenses was the lack of intercouse in the case of battery and failed to notice that rape required resistance which is overcome by force or violence, and which was not required in case of a battery. Under these circumstances, the jury would naturally wonder how they could consistently find the defendants guilty of a battery and not guilty of rape since intercourse was admitted. This is the problem which I think they tried to present to the court for explanation, they were not bothered in understanding any word, phrase, sentence, or instruction, but their problem was a question of whether they could consistently find the defendants guilty of battery and not find them also guilty of rape, since they admitted intercourse and in both offenses they must find force or violence.

    The court told them that it could not clear this matter up for them but that they must determine it for themselves. It is the duty of the court not only to state the law abstractly to the jury, but to apply the law to the facts as they are disclosed by the evidence in the case. Here the court should have pointed out to the jury, after they indicated that their minds were not clear on that question, the facts, aside from intercourse, which must be found in order to constitute rape, in addition to the facts necessary to constitute a battery. They should have been instructed that even though they were satisfied that the defendants were guilty of a battery, they must also find that the woman resisted and that such resistance was overcome by force or violence before they could be found guilty of rape. It might well be that the jury did not recognize the difference between these two offenses under the facts as here disclosed and thought that they *Page 177 could not consistently find the defendants guilty of battery without also finding them guilty of rape.

    I therefore agree that the case should be reversed.

Document Info

Docket Number: No. 7116.

Citation Numbers: 203 P.2d 397, 115 Utah 168

Judges: McDONOUGH, Justice.

Filed Date: 3/1/1949

Precedential Status: Precedential

Modified Date: 1/13/2023