INTRODUCTION Federal legislation treating sex offenses assumes an importance beyond the incidence of their occurrence within the jurisdiction of the United States. Although there are very few federal prosecutions of 1/ these crimes, federal legislation serves as a nationwide model and frequently spurs state reform. A critical examination of the issues is therefore required. It is also required because the inflammatory nature of the subject sometimes impedes rational analysis. In many The subchapter on sex offenses is divided into six sections (SS1641-46). The first five sections define the substantive offenses of rape, sexual assault, sexual abuse of a minor, sexual abuse of a ward and unlawful sexual contact. The remaining section contains definitions and proof requirements which apply throughout the subchapter. respects the sex offense subchapter represents a substantial departure from existing federal law. However, it is similar to the sexual offense provisions which many states have recently enacted. This report describes the way in which S. 1437 modifies existing federal law in the area of sex crimes, compares the proposed changes to state law, and analyzes the 1/ Federal prosecutions of the crime of rape under 18 U.S.C. $2031, the principal federal rape statute over the three-year period, fiscal 1974 through 1976, involved a total of forty-two defendants. Privacy of rape victims. Hearings on H.R. 14666 and other Bills before the Subcommittee on Criminal Justice of the House Committee on the Judiciary 94th Cong., 2d Sess. 3 (1976) (hereinafter cited as 1976 Hearings on the Privacy of Rape Victims). CRS-2 major issues raised by the proposed legislation. It is divided in three parts. The first part describes existing Federal law, the second part provides an overview of the new sex offense provisions and the third part analyzes the new provisions with reference to state law, social and legal commentary, and legislative history. There are three major Federal statutes defining and punishing sex offenses. These are 18 U.S.C. $2031 punishing rape, 18 U.S.C. §2032 punishing carnal knowledge of a female under sixteen years old, and 18 U.S.C. $113(a) punishing assault with intent to commit rape. These statutes apply throughout the special maritime and territorial jurisdiction of the 3/ United States. 18 U.S.C. $2031 provides that whoever "within the special maritime and territorial jurisdiction of the United States, commits rape shall suffer death, or imprisonment for any term of years or for life." This 41 statute, except for the death penalty provision, has been sustained as constitutional and interpreted to incorporate the common law of crime 5/ of rape. At common law, rape occurs when a male has carnal knowledge 2/ There are two other statutes in title 18 which treat sex crimes from a substantive as distinguished from a jurisdictional standpoint. 18 U.S.C. $2198 punishes seduction of a female passenger by an employee of an American vessel during a voyage. Since this statute has more historical than legal significance it is not discussed here. 18 U.S.C. $$2421-2424, the White Slave Traffic Act, principally punishes prostitution. It is carried forward in section 1843 of S. 1437. Since the essence of prostitution is injury to the public order rather than injury to the person, it is not discussed in this report. 3/ As defined by 18 U.S.C. $7 the special maritime and territorial jurisdiction basically includes the following three geographic areas: (1) territory reserved or acquired for the use of the United States and not under the exclusive control of a state or foreign government; (2) the high seas; (3) waters within, together with airspace over, the maritime jurisdiction of the United States. The Supreme Court recently declared the death penalty for rape of an adult female unconstitutional. Coker v. Georgia, 97 S.Ct. 2861 (1977). 5/ See Oliver v. United States, 230 F. 971 (9th Cir.), cert. denied, 241 U.S. 670 (1916). CRS-4 6/ of a female not his wife forcibly and against her will. Applying this definition, the statute requires proof of the following elements: (1) a male perpetrator, (2) a female victim who is not the offender's wife, (3) sexual intercourse, (4) force or non-consent. Courts, interpreting the statute, have held that it is not necessary to show that the defendant 7/ intended to put the victim in fear of death or great bodily harm, nor is it necessary to show that the victim resisted with every ounce of strength. However, the victim must oppose the offender where she is in possession of her natural mental and physical powers, is not terrified by threats, nor overcome by numbers, and where resistance would not be futile. 9/ Unfortunately, some of the features of the common law crime of rape vary from jurisdiction to jurisdiction. It by the fact that there are very few cases interpreting 18 U.S.C. §2031. is therefore impossible to delineate the outer limits of the conduct prohibited by the statute. Whether an offender under fourteen years old can perpetrate the crime, whether a husband can be charged with accomplice 11/ 10/ liability, whether sexual intercourse induced by fraud or with a mentally 8/ 6/ R. Perkins, Criminal Law 152 (2d ed. 1969) (hereinafter cited as Perkins) 7/ Carlton v. United States, 395 F. 2d 10, 12 (9th cir. 1968), cert. denied, 393 U.S. 1030 (1969). 8/ Mills v. United States, 164 U.S. 644 (1897). 9/ Id. at 648. 10/ A male under the age of fourteen was deemed incapable of committing 11/ In most jurisdictions a husband who aids, abets or forces another to Elliot v. State, 190 Ga. 803, 10 S.E. 2d. 843 (1940); People v. Damer, |