CRS-5 12/ deficient woman constitutes rape are questions which cannot be answered since federal law is silent and the common law does not have a There is very little case law applying or interpreting the two other Federal statutes defining and punishing sex offenses. A few points, however, deserve mention. First, 18 U.S.C. $2032 punishing statutory rape sets the age of consent at sixteen years. Force or lack of consent is not an element of the crime which is complete upon the slightest penetration. Second, 18 U.S.C. $113(a) punishing assault with intent to rape requires specific intent to have intercourse as an element of the crime. touching of a woman's genitals or intimate parts will not sustain a conviction absent proof that the defendant intended to have intercourse. There are a few other Federal laws treating sex offenses. The 15/ The rationale for these additional laws requires some understanding of the substantive and jurisdictional limitations of the three principal federal statutes. 14/ First, the three major laws only punish rape or attempted rape. They do not cover other forms of sexual conduct such as sodomy. Second, the principal statutes only apply throughout the special territorial and maritime jurisdiction. They do not reach other areas of federal jurisdiction, 12/ Most jurisdictions have attempted to codify circumstances in which consent is deemed ineffective. See text infra at 21-29. 13/ 14/ It is slightly misleading even to talk about the common law crime Cf. Callahan v. United States, 240 F. 683 (9th Cir. 1917). 15/ Oyamada v. United States, 44 F. 2d 564 (9th Cir. 1930). CRS-6 e.g., Indian reservations. The additional federal laws treating sex offenses remedy some of these limitations. Some fill in jurisdictional gaps. Some penalize other forms of sexual conduct by assimilating state law. A third group of laws is not intended to punish sex offenses per se but because of the particular circumstances of the crime, they may be used to assert federal prosecutorial power over sexual misconduct which would otherwise be a matter of local law. The Assimilated Crimes Act, 18 U.S.C. $13, partially remedies the breach created by the paucity of federal law defining and punishing sex crimes. It provides that in the absence of a federal substantive law, 16/ state law governs criminal activity occuring in a federal enclave, For example, if sodomy occurs in a federal penitentiary in Virginia, the laws of Virginia would define both the elements of the crime and the penalties since no federal law defines and punishes sodomy. However, since the crime occured in an area of federal jurisdiction, it would still be prosecuted under federal auspices, i.e., in a federal district court. Although the special territorial and maritime jurisdiction of the United States is the major basis of federal jurisdiction, there are other areas where the United States exercises jurisdiction. Several laws therefore make rape an offense when it occurs outside the special maritime and territorial jurisdiction of the United States. Under 49 U.S.C. 17/ 16/ A federal enclave is an area of federal jurisdiction located within a state. 17/ See note 3 supra for a description of the geographical scope of the special territorial and maritime jurisdiction. CRS-7 $1472 (k), the offense of rape under 18 U.S.C. $2031 is made punishable when committed within the special aircraft jurisdiction of the United States, as defined in 49 U.S.C. $1301(32). Likewise, under 18 U.S.C. $1152 the offense of rape as defined in 18 U.S.C. $2031 applies within Indian country when committed by a non-Indian against an Indian. Finally, under 18 U.S.C. §1153, the Major Crimes Act, any Indian who commits rape, assault with intent to rape, or "statutory" rape is guilty of an offense. The penalties and elements of these offenses are the same as under the three major federal provisions. There is yet a third category of Federal laws which indirectly covers sex offenses. Generally, these laws are intended to punish criminal activity involving a federal interest. However, because of the particular way in which a crime is committed, sexual misconduct may become an element of the federal crime. To illustrate, 18 U.S.C. $241 makes it an offense to conspire against a citizen's free exercise of the rights and privileges secured by the Constitution. If members of the Ku Klux Klan agree to retaliate against a black woman for exercising her right to vote by raping her, the conduct could be prosecuted under 18 U.S.C. $241. Although the example may be a bit far-fetched, it illustrates the point that there are many federal criminal statutes which are framed in language broad enough to permit the assertion of federal jurisdiction over sexual misconduct which ordinarily would fall 18/ within the exclusive jurisdiction of a state. 18/ In the example above, the state would have concurrent jurisdiction The sex offense provisions contained in S. 1437 were drafted to correct three perceived deficiencies in existing federal law. First, the drafters wanted to avoid the uncertainties connected with the common 19/ law definition of rape. Second, the drafters wanted to define and punish a greater number of sex offenses in order to eliminate the inequities of criminal liability for sex offenses caused by the vagaries in state law assimilated through 18 U.S.C. $13 and in order to prevent the absence 20/ of criminal liability in certain areas of federal jurisdiction. Finally, the drafters wanted to equalize the treatment of heterosexual 21/ and homosexual sex offenses. In keeping with these purposes S. 1437 departs from current federal law in that its sex provisions are couched in sex-neutral terms, it establishes several new federal sex offenses, and it provides greater specificity as to the elements of each sexual offense. Section 1641 defines the offense of rape. The conduct punished includes engaging in a sexual act (i) by force or threat, (ii) by impairing a victim's power to control or appraise his or her behavior, or (iii) with a child under twelve years old. The term "sexual act" is defined in section 1646 to mean conduct between human beings consisting of contact between the penis and the vulva, the anus, or the mouth or contact 19/ S. Rep. No. 95-605 Pt. I, 95th Cong., 1st Sess. 572 (1977) (hereinafter cited as 1977 Senate Report). 20/ 21/ Id. National Commission on Reform of Federal Criminal Laws, Working Papers 868 (1970) (hereinafter cited as Commission Working Papers). CRS-9 between the mouth and the vulva. Contact involving the penis requires penetration, however slight, but not emission. Threats which will suffice to establish criminal liability under section 1641 are confined to threats of imminent death, serious bodily injury or kidnapping. Section 111 defines "serious bodily injury" to mean bodily injury which involves a substantial risk of death, unconsciousness, extreme physical pain, protracted and obvious disfigurement, or loss or protracted impairment of a function of a bodily member, organ or mental faculty. Liability for rape also attaches where the perpetrator substantially impairs the victim's ability to appraise or control his or her behavior. While this section contemplates impairment resulting from the administration of drugs or intoxicants, the language is broad enough to include mental impairment brought about by hypnosis or by any other means. The perpetrator must bring about the impairment against the victim's will or without the victim's knowledge, must intend to engage in a sexual act, and must have knowledge of the nature of the substance he is administering. The offense of rape is graded as a class B felony up to twenty years in prison. Section 1642 punishes the crime of sexual assault. It mostly covers situations where the victim by virtue of some incapacitating condition is unable to give meaningful consent. Many of these circumstances parallel features 23/ of the common law crime of rape. The conduct punished by this section includes engaging in a sexual act where the offender knows that the other person is (a) incapable of understanding the nature of the conduct; (b) physically incapable |