In Collins v. State, the defendant Collins was convicted of the forcible rape of a thirteen-year-old girl who testified that she struggled with the defendant before being raped in the back of his truck. The two were acquaintances, and the defendant maintained that the incident was consensual and that the victim had lied about her age. Collins appealed his conviction, claiming the lower court erred by refusing to instruct on the crime of statutory rape, which carried a lower penalty than the forcible rape offense. Because statutory rape was not a lesser included offense of forcible rape and the mistake-of-age defense was not available in Mississippi at the time of trial, the court held that an instruction was not warranted. In contrast, other jurisdictions allow prosecutors to charge, judges to instruct, and even juries to convict for both forcible rape and statutory rape arising from a single act of sexual intercourse without violating the Double Jeopardy Clause of the Fifth Amendment.
Rape is a “perplexing, controversial and emotionally charged” area of criminal law. Protection from double jeopardy is a fundamental guarantee dating back to Greco-Roman tradition and appearing frequently in popular culture. Yet this constitutional guarantee is a complex and often misunderstood area of the law. Even more confusing is the doctrine of lesser included offenses. When the crime of rape collides with double jeopardy principles and the doctrine of lesser included offenses, the results are unpredictable and at times surprising. Yet very little attention has been given to the intersection of these areas of the law.
This Comment examines the interplay between the crimes of forcible rape and statutory rape with the Double Jeopardy Clause of the United States Constitution and the doctrine of lesser included offenses. Part II discusses the split among courts over whether statutory rape is a lesser included offense of forcible rape, and whether the Double Jeopardy Clause bars multiple prosecutions and/or multiple punishments in the same prosecution for forcible rape and statutory rape arising from the same act of intercourse. Part II.A provides an overview of the double jeopardy protection and the test used to determine if two offenses are the “same” for purposes of the Clause. Part II.B offers an overview of the doctrine of lesser included offenses, including the tests used to define lesser included offenses; when a jury instruction on a lesser included offense is permissible, mandated, or prohibited; and how the doctrine relates to the Double Jeopardy Clause.
Part II.C discusses the substantive offenses of statutory rape and forcible rape, including the origins of the crime of statutory rape, statutory rape statutes, the elements of statutory rape in general, the elements of forcible rape in general, and how the crimes relate to one another. Part II.D examines the opinions of various courts that have considered double jeopardy challenges to multiple punishments and prosecutions for statutory rape and forcible rape arising from a single act. This section also examines cases addressing whether statutory rape is a lesser included offense of forcible rape and the reasoning behind these decisions.
Part III evaluates the reasoning of courts that have addressed the double jeopardy and lesser included offense doctrines in the context of statutory rape and forcible rape. Part III.A discusses criticisms of the statutory elements approach in the context of forcible rape/statutory rape prosecutions. Part III.B explores the definitions of force promulgated by some courts considering charges for both forcible rape and statutory rape. Part III.C proposes that forcible rape and statutory rape be treated as the “same offense” for double jeopardy purposes, and that statutory rape be treated as a lesser included offense of forcible rape. Part III.C also includes a statutory proposal for the remodeling of forcible rape and statutory rape laws, with explicit language governing the relationship between the two. In conclusion, this Comment advocates a more practical approach whereby double jeopardy bars multiple convictions for statutory rape and forcible rape, and statutory rape is a lesser included offense of forcible rape.