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dascmom
03-25-2013, 06:12 AM
In the story I am working on, a man, who happens to be the older step brother of the victim, verbally coerces the younger adult male (18 years old) into having sexual intercourse with him. So it is not physically forced, but more so emotionally coerced by the use of emotional blackmail i.e. "if you don't go along with this, then I am going to tell your father ... and with his poor health that could kill him etc." type of situation.

So, is it legally considered rape if emotional force is used to gain access (not really consent) rather than physical force? Or say, if the victim could easily get up and leave, but doesn't because of deep fear of the repercussions.

Thanks!

Fade
03-25-2013, 06:18 AM
I think the law changes depending on what state your in, but according to rainn.org


Rape victims may be forced through threats or physical means. In about 8 out of 10 rapes, no weapon is used other than physical force

Blackmail sounds like a threat, so I think it'd count, but I recommend checking state and our country laws for the location of the story.

CWatts
03-25-2013, 06:29 AM
Wouldn't it being his step brother automatically make it incest?

jmare
03-25-2013, 06:41 AM
Wouldn't it being his step brother automatically make it incest?

Incest requires blood relation. Step brothers aren't related by blood. No less creepy though.

dascmom
03-25-2013, 06:45 AM
The man (25 years old) who manipulates the 18-year-old into having sex through verbal threats, is the son of the woman who marries the 18 year old's father (five years before), so they are not genetically related, but at one time did live in the same household. Is it still considered incest?

I am not sure if a "threat" has to be with the potential of something physical happening to the victim.

Canotila
03-25-2013, 11:54 AM
Yes, it absolutely is considered rape. Proving it in court could be extremely challenging unless the perpetrator had sent him something easy to document, like texts or an e-mail. Even straightforward "traditional" rape cases are difficult to prove in court.

Threats can be anything that intimidates the other person into doing something against their will. The perpetrator could even threaten to commit suicide out of shame if the victim told anyone and that would still be a threat.

cornflake
03-25-2013, 12:02 PM
I don't think emotional blackmail comes close to the legal definition of rape. Threats like 'I'll shoot you/your family member,' are one thing; threats like 'I'll tell your father and he'll be so upset he might keel over (to an adult)' are quite another.

BunnyMaz
03-25-2013, 04:43 PM
Coercion counts. I'm not sure the specific threat you've given as an example would be convincing to an 18 year old, because it's a bit weak. "Sleep with me or I'll tell your dad you slept with me" seems... unlikely to feel like a realistic threat. It's the sort of threat that would work on a child, maybe, but certainly not on a teen or adult.

But a more serious threat could work. The kid's father's boss telling him he'll fire his dad, a teacher threatening his grades that will stop him getting into university, a bully making it clear that they'll go after his younger sibling instead... there has to be some actual meat on it for it to be a convincing threat for someone to give in to it, and for it to convincingly come across as coercion-based rape.

dascmom
03-25-2013, 10:03 PM
Thanks. These answers have been helpful.

As far as the threat, the older brother had been molesting the younger brother off and on from the ages of about 14-17, which is another topic I've been researching. Since then, the younger brother was able to stop the sexual abuse by moving out early to go to college. However, the older brother has been hanging around the college campus, trying to talk to the younger one. One night the younger brother is called home due to his father's failing health (heart problems). That night, the father is given the OK to go home after he has been stabilized at the hospital. At the house, the older brother rapes the younger brother, who is now a legal adult, saying that if he screams or makes a scene his father will hear and it may kill him, due to his poor health. So the younger brother just lets it happen and leaves the next morning.

Does that threat constitute rape, especially considering that there had been an ongoing abusive relationship in the past?

Thanks!

cornflake
03-25-2013, 10:23 PM
Thanks. These answers have been helpful.

As far as the threat, the older brother had been molesting the younger brother off and on from the ages of about 14-17, which is another topic I've been researching. Since then, the younger brother was able to stop the sexual abuse by moving out early to go to college. However, the older brother has been hanging around the college campus, trying to talk to the younger one. One night the younger brother is called home due to his father's failing health (heart problems). That night, the father is given the OK to go home after he has been stabilized at the hospital. At the house, the older brother rapes the younger brother, who is now a legal adult, saying that if he screams or makes a scene his father will hear and it may kill him, due to his poor health. So the younger brother just lets it happen and leaves the next morning.

Does that threat constitute rape, especially considering that there had been an ongoing abusive relationship in the past?

Thanks!

I'm confused now. The older had been molesting the younger until he was 17? You're separating this out because of age? How old is the older brother? Why was it non-consensual in the past?

In general, past relationship has nothing to do with the current event - any more than a husband could claim he didn't rape his wife that one night because she has sex with him all the time.

MarkEsq
03-25-2013, 10:44 PM
I hate to contradict folks but coercion will not count. Remember that rape statutes vary from state to state but I'd be shocked if anywhere allowed mere verbal coercion.

Rape (or sexual assault as we call it in Texas) happens when there is anal/vaginal penetration without the victim's consent.

Lack of consent exists when there is:

-- physical force or violence
-- threat of physical force or violence
-- unconscious victim (or otherwise unable to resist)

There are others, but these are the main ones and none of the enumerated 'lack of consent' situations in my penal code include coercion, so the situation you suggest really wouldn't fly.

Best of luck!

evilrooster
03-25-2013, 10:47 PM
At the house, the older brother rapes the younger brother, who is now a legal adult, saying that if he screams or makes a scene his father will hear and it may kill him, due to his poor health. So the younger brother just lets it happen and leaves the next morning.

Does that threat constitute rape, especially considering that there had been an ongoing abusive relationship in the past?


Phrased the way you have it there, I'd say it's rape. It's clear that the younger brother does not consent to the sex. His failure to make a scene is a separate issue from his consent.

It would be muddier if the elder brother had said, "Have sex with me or I'll tell Dad that we've been lovers." I think it would still count as rape, because it's coerced consent rather than free consent. But "don't make a noise while I do this thing you don't consent to" is much more straightforward.

Having said that, if I were a prosecutor, I'd choose to bring statutory rape charges against the older brother over the earlier molestation rather than try to prosecute the incident under question as rape. Not that it doesn't count, from what you've said. But it'll be easier to get a jury on-side for the under-age stuff.

BunnyMaz
03-25-2013, 11:09 PM
The scene as you've clarified it reads as rape to me. Sexual assault/paedophilia/incest victim is forced to have sex with their abuser through emotional blackmail. And the threat definitely sounds more believable in the context you've described.

Maryn
03-25-2013, 11:54 PM
Personally, I'm more inclined to give credence to the reply from the attorney rather than trust what seems right or how it ought to be.

We all know there's a lot about law, both criminal and civil, which can produce results other than what we feel is right or fair. Cases of "emotional blackmail" might well be among them. Is it even illegal? I dunno. Can the victim prove it? I doubt it.

So as a set-up for this situation to work, if you need it to be illegal, I think you need to consult an attorney in the state where the work is set and have him or her search case law.

Maryn, with no doubt that it's immoral and unconscionable

cornflake
03-25-2013, 11:58 PM
Phrased the way you have it there, I'd say it's rape. It's clear that the younger brother does not consent to the sex. His failure to make a scene is a separate issue from his consent.

It would be muddier if the elder brother had said, "Have sex with me or I'll tell Dad that we've been lovers." I think it would still count as rape, because it's coerced consent rather than free consent. But "don't make a noise while I do this thing you don't consent to" is much more straightforward.

Having said that, if I were a prosecutor, I'd choose to bring statutory rape charges against the older brother over the earlier molestation rather than try to prosecute the incident under question as rape. Not that it doesn't count, from what you've said. But it'll be easier to get a jury on-side for the under-age stuff.

We don't even know the age differentiation - not to mention that many places stat rape is only m/f and can require complaint.

jclarkdawe
03-26-2013, 12:03 AM
Why are you making this complicated? You've got statutory rape for two years, virtually no statute of limitations on it, and a simple case (relatively) to prove. Although the coercion meets society's definition of rape, as Mark says it's going to be hard to pigeon hold into a legal definition. And incredibly hard to prove to a jury's satisfaction.

And if you tell me the victim is only admitting to the adult rape happening, you're not going to succeed. Males especially are going to admit to being raped the more easily they were victims.

Best of luck,

Jim Clark-Dawe

MarkEsq
03-26-2013, 12:35 AM
The scene as you've clarified it reads as rape to me. Sexual assault/paedophilia/incest victim is forced to have sex with their abuser through emotional blackmail. And the threat definitely sounds more believable in the context you've described.

Not to get into a back-and-forth, Bunny, but... :) I definitely agree that it's immoral and unconscionable (as Maryn says) but as a guy who's indicted and prosecuted rape cases, I'm here to tell you this isn't rape. Let me repeat: immoral and unconscionable, absolutely. But without some element of physical coercion, it's does not amount to the crime of sexual assault.

BunnyMaz
03-26-2013, 01:34 AM
Not to get into a back-and-forth, Bunny, but... :) I definitely agree that it's immoral and unconscionable (as Maryn says) but as a guy who's indicted and prosecuted rape cases, I'm here to tell you this isn't rape. Let me repeat: immoral and unconscionable, absolutely. But without some element of physical coercion, it's does not amount to the crime of sexual assault.

Really? But how can this be considered to have meaningful consent? I was under the impression that rape was the absence of consent. Genuinely curious, here. I had heard the US definition of rape was recently updated to something like


"the penetration, no matter how slight, of the vagina or anus with any body part or object" without the consent of the victim.And in the UK it's


1-(1) A person (A) commits an offence if—
(a) he intentionally penetrates the vagina, anus or mouth of another person (B) with his penis,
(b) B does not consent to the penetration, and
(c) A does not reasonably believe that B consents.

(2) Whether a belief is reasonable is to be determined having regard to all the circumstances, including any steps A has taken to ascertain whether B consents.
(3) Sections 75 and 76 apply to an offence under this section.
(4) A person guilty of an offence under this section is liable, on conviction on indictment, to imprisonment for life.

evilrooster
03-26-2013, 01:54 AM
The definition of rape varies from US state to US state. For instance, I gather from various discussions of recent events that Ohio doesn't have the same requirement for physical coercion/inability to resist that Texas does. Lack of consent is sufficient.

I suspect dascmom is going to want to do some research into the precise laws of the state where the story is set.

cornflake
03-26-2013, 01:55 AM
Really? But how can this be considered to have meaningful consent? I was under the impression that rape was the absence of consent. Genuinely curious, here. I had heard the US definition of rape was recently updated to something like

And in the UK it's

There's nothing in the OP's post that says the guy doesn't consent.

jclarkdawe
03-26-2013, 02:23 AM
Verbal and emotional coercion is on a gradient. Here's two examples:

Guy to girl: "Make love to me or I'm leaving."

Guy to girl: "Fuck me or I break your jaw."

Both are coercion, but only one meets the legal definition of rape. Both have issues of the validity of the consent. This type of case is going to be both incredibly fact specific and state specific.

And Mark specifically listed an "unconscious" or otherwise unable to resist victim as rape. Legally, ability to consent to very different from the validity of the consent. In the Ohio case, there was a serious issue about whether she said yes or no, but it didn't matter. She was so intoxicated she lacked the ability to consent. Something the young men involved in the case didn't understand.

Best of luck,

Jim Clark-Dawe

ULTRAGOTHA
03-26-2013, 02:36 AM
Does this take place in the 21st century?

What country does it take place in?

If the United States, what state does it take place in?

Without that information it's hard to give specific advice as rape laws vary so much from state to state.

And are you looking to have the older step-brother charged with rape? If so, I agree with jclarkdawe that you have a perfectly good statutory rape case if the rape started when the younger step-brother was 14.

evilrooster
03-26-2013, 03:28 AM
And Mark specifically listed an "unconscious" or otherwise unable to resist victim as rape. Legally, ability to consent to very different from the validity of the consent. In the Ohio case, there was a serious issue about whether she said yes or no, but it didn't matter. She was so intoxicated she lacked the ability to consent. Something the young men involved in the case didn't understand.

I was unclear. The recent case in Ohio made me look at the statute in that state. Although in that specific case, the victim was incapable of consent, even had she been sober, a rape could have occurred without physical violence or the threat of it. Lack of consent is sufficient in Ohio, whereas I gather it is not in Texas.

Which reinforces that the law varies, and the OP will need to look at local statutes to determine the specific condions that apply.

cornflake
03-26-2013, 05:00 AM
Verbal and emotional coercion is on a gradient. Here's two examples:

Guy to girl: "Make love to me or I'm leaving."

Guy to girl: "Fuck me or I break your jaw."

Both are coercion, but only one meets the legal definition of rape. Both have issues of the validity of the consent. This type of case is going to be both incredibly fact specific and state specific.

And Mark specifically listed an "unconscious" or otherwise unable to resist victim as rape. Legally, ability to consent to very different from the validity of the consent. In the Ohio case, there was a serious issue about whether she said yes or no, but it didn't matter. She was so intoxicated she lacked the ability to consent. Something the young men involved in the case didn't understand.

Best of luck,

Jim Clark-Dawe

I'm separating 'threats' as in 'I will kill/harm you, etc.' from personal emotional coercion full stop, and have been the whole thread. I don't think the scenario described by the OP is close to rape.

There are a number of ways someone can be unable to consent, among them unconsciousness, age, altered state, but I don't see anything I'd think was criminal in the OP's scenario, save possibly what's described as the molestation, but that's unclear (as to what happened, ages, etc.).

GingerGunlock
03-26-2013, 05:04 AM
Thanks. These answers have been helpful.

As far as the threat, the older brother had been molesting the younger brother off and on from the ages of about 14-17, which is another topic I've been researching. Since then, the younger brother was able to stop the sexual abuse by moving out early to go to college. However, the older brother has been hanging around the college campus, trying to talk to the younger one. One night the younger brother is called home due to his father's failing health (heart problems). That night, the father is given the OK to go home after he has been stabilized at the hospital. At the house, the older brother rapes the younger brother, who is now a legal adult, saying that if he screams or makes a scene his father will hear and it may kill him, due to his poor health. So the younger brother just lets it happen and leaves the next morning.

Does that threat constitute rape, especially considering that there had been an ongoing abusive relationship in the past?

Thanks!

I feel, given these details, that this would constitute as rape. The younger brother would not engage in the act without the coercion, does not want such an act to occur, and immediately distances himself physically from both the older stepbrother brother and the father he wanted to protect. "Do this or it will hurt [person you love]", be it "violent" or not, is a coercive threat that makes a situation rape, regardless of age and gender.

dascmom
03-26-2013, 06:14 AM
Wow.

That is a lot of conflicting information. As far as the age difference, when the younger brother was 14 older brother was 19, so 5 year age difference. It went on until younger brother was 17 and older brother was 22. It was not consensual, again, older brother verbally coerced younger brother, but it is statutory rape whether or not it was consensual, right? (Because the younger brother was a minor) A year went by during which younger brother turned 18 and in that year no abuse occurred. The older brother is back again, thinking he can pressure/manipulate his younger brother to restart their sexual relationship.

This takes places in the present in the state of Massachusetts.

I realize that the statutory rape would be the simpler, more clear-cut thing to focus on for prosecution, but I want to know if what happened to him at 18 is rape.

cornflake
03-26-2013, 06:23 AM
Wow.

That is a lot of conflicting information. As far as the age difference, when the younger brother was 14 older brother was 19, so 5 year age difference. It went on until younger brother was 17 and older brother was 22. It was not consensual, again, older brother verbally coerced younger brother, but it is statutory rape whether or not it was consensual, right? (Because the younger brother was a minor) A year went by during which younger brother turned 18 and in that year no abuse occurred. The older brother is back again, thinking he can pressure/manipulate his younger brother to restart their sexual relationship.

This takes places in the present in the state of Massachusetts.

I realize that the statutory rape would be the simpler, more clear-cut thing to focus on for prosecution, but I want to know if what happened to him at 18 is rape.

No. Stat rape laws vary hugely and mostly hinge on the age gap, older person's age, sometimes sex of the participants and often whether someone complains. Sometimes they have other weirdness.

That he was 14 and the older was 19 would likely allow for some kind of charge of assault or abuse of a minor, though still depends on the state.

I'm still of the opinion the situation when the younger brother was 18 wouldn't meet rape in any state.

jclarkdawe
03-26-2013, 06:57 AM
Mark is a prosecutor in the state of Texas. I used to represent criminal defendants, including rapists, in New Hampshire.

It's the COMMONWEALTH of Massachusetts. Massachusetts is a commonwealth, rather then a state.

Massachusetts would permit a case of statutory rape here. Massachusetts does not favor either hetero or homo-sexual rape, and prosecutes both men and women. There are varying levels here, but all will get you on the sex offender's list if you're convicted. Age of consent in Massachusetts is 16.

I don't think the pressure on the victim at age 18 would be sufficient to support a conviction for rape/sexual assault. It might support a charge. You'd have to reach the threshold for blackmail. Here's the relevant statute from Massachusetts:


Section 25. Whoever, verbally or by a written or printed communication, maliciously threatens to accuse another of a crime or offence, or by a verbal or written or printed communication maliciously threatens an injury to the person or property of another, or any police officer or person having the powers of a police officer, or any officer, or employee of any licensing authority who verbally or by written or printed communication maliciously and unlawfully uses or threatens to use against another the power or authority vested in him, with intent thereby to extort money or any pecuniary advantage, or with intent to compel any person to do any act against his will, shall be punished by imprisonment in the state prison for not more than fifteen years, or in the house of correction for not more than two and one half years, or by a fine of not more than five thousand dollars, or both. I don't think you can get here from there. Now if the older brother were to threaten to report the younger brother for sodomy (never mind it's no longer a crime and the fact that the older brother would also be on the hook) to the police, then you get into the extortion statute, and that would get you into the sexual assault statute.

Best of luck,

Jim Clark-Dawe

cornflake
03-26-2013, 07:13 AM
I just looked up Mass.' stat rape law. I can't quite imagine it's used often; it's bizarre. To wit -


Criminal inducement to get a person under age 18 of chaste life to have unlawful sexual intercourse.

I cannot find a definition of unlawful sexual intercourse in the MA code; I presume I'm missing it someplace but got me.

The earlier contact doesn't seem to fit a higher charge as there wasn't more than five years between the two.

Mass does still appear to have unnatural sexual contact laws on the books, so theoretically - though I can't quite imagine anyone in MA actually using that either. :Shrug:

dascmom
03-26-2013, 07:30 AM
Cornflake-
I also came across what you came across "inducement to get a person under age 18..." and I was unsure how this applied to my character's situation. In fact, in researching the statutory rape laws I was left feeling that there were gaps to deal with people above the age of 14.

All in all, does the younger brother stand a chance of getting a rape conviction against his older brother in this situation? Or if you were his lawyer would you advise against pursuing this?

jclarkdawe
03-26-2013, 07:36 AM
Massachusetts chapter 265, section 23:


Section 23. Whoever unlawfully has sexual intercourse or unnatural sexual intercourse, and abuses a child under 16 years of age, shall be punished by imprisonment in the state prison for life or for any term of years or, except as otherwise provided, for any term in a jail or house of correction. A prosecution commenced under this section shall neither be continued without a finding nor placed on file.

Massachusetts is funky in criminal law, and I haven't dealt with it for a long time. It's contained in chapter 265, sections 22 and 23. For example, there's also chapter 265, section 22A on statutory rape, and I don't know how this mess interrelates. I know from doing CLEs in Massachusetts that some of their stuff baffles anyone else.

Best of luck,

Jim Clark-Dawe

jclarkdawe
03-26-2013, 07:42 AM
Cornflake-
I also came across what you came across "inducement to get a person under age 18..." and I was unsure how this applied to my character's situation. In fact, in researching the statutory rape laws I was left feeling that there were gaps to deal with people above the age of 14. Massachusetts is 16 for age of consent. I don't know where you and Corn are finding this statute. It sounds like some of the older stuff down there that got changed years ago. Massachusetts' laws are always a chapter and section.

All in all, does the younger brother stand a chance of getting a rape conviction against his older brother in this situation? For the statutory rape? Very good. For the assault that occurs when he's 18? Probably not. Or if you were his lawyer would you advise against pursuing this? I'd advise him to contact the prosecutor. I'd arrange a meeting with the prosecutor that is the strongest advocate for sexual victims.

Best of luck,

Jim Clark-Dawe

cornflake
03-26-2013, 07:56 AM
As far as I can see it hasn't been changed.


MGL c.272, s. 4. Inducing person under 18 to have sexual intercourse.

Whoever induces any person under 18 years of age of chaste life to have unlawful sexual intercourse shall be punished by imprisonment in the state prison for not more than three years or in a jail or house of correction for not more than two and one-half years or by a fine of not more than $1,000 or by both such fine and imprisonment.

I saw s.23, but it too uses 'unlawful' and, more to the point 'and abuses' which I was interpreting as they required something more as 'anyone having intercourse with anyone under 16' is less than specific. I freely admit I think pretty much all stat rape laws are idiotic (I'm not in favour of abusing children in any way shape or form; I think we've got it covered by child abuse and rape laws and many stat rape laws are weird and often sexist), and that'd certainly be up there imo, if it required nothing more than anyone at all having sex with anyone at all under 16.

jclarkdawe
03-26-2013, 06:04 PM
Massachusetts still has a lot of its moral Puritanical views. Banned in Boston used to be how risque movies were advertised.

Chapter 272 is the morals section of Massachusetts' laws, although it also contains some funky stuff like how many buckets of water a stable has to have for fire fighting. But section 4 is used primarily for pimps who induce underage girls to enter prostitution. Chapter 265 are crimes against a person.

In Massachusetts, "unlawful" is used to eliminate a lawful purpose. For example, a "lawful" violation of a rape statute is a pelvic or prostate exam. Both involve penetration, but it is for a lawful purpose. Without the word "unlawful," both a pelvic and a prostate exam would be rape in Massachusetts.

"Abuses" in this case is used to make the situation different from using force. Statutory rape is a bit complicated in Massachusetts.

Best of luck,

Jim Clark-Dawe