Concept

MPC Rape Provision

Rape

MPC Rape Provision

Model Penal Code § 213.1(1) replaces the open-ended common-law question, whether intercourse occurred against a woman's will or without her effective consent, with a list of grounds written into the statute. A male who has sexual intercourse with a female not his wife is guilty of rape if the facts fit one of four routes. The first is that he compels her to submit by force or by a threat of imminent death, serious bodily injury, extreme pain, or kidnapping to be inflicted on anyone. The second is that he has substantially impaired her power to appraise or control her conduct by covertly administering drugs, intoxicants, or other means for the purpose of preventing resistance. The third is that she is unconscious, and the fourth is that she is less than ten years old.¹ Because the grounds are stated in the text, the analysis does not ask whether her consent was effective in some general sense. It asks whether the facts land on one of the four routes.

The provision also sorts conduct into tiers. Rape under § 213.1(1) is a felony of the second degree, rising to the first degree in two circumstances taken up at the end of this section. The Code places lesser coercion and known incapacity in a separate third-degree offense, gross sexual imposition, in § 213.1(2).² The division into degrees was one of the Code's innovations, and it lets grading and punishment track the culpability of the offender and the harm to the victim.³ The four rape routes describe situations in which the victim had no real choice: she was compelled by force or an extreme threat, covertly drugged, unconscious, or too young. Gross sexual imposition collects weaker coercion and a known but less total incapacity, so the label and the punishment rise with the seriousness of the compulsion or the victim's helplessness.

Exam Analysis Steps

Because each route is an independent way to commit rape, and because the grading clause applies to all of them, the provision is best run as a short sequence. The steps are these:

Confirm that the actor is male and the victim is a female who is not his wife, since § 213.1(1) is written for no other combination.
Ask whether the actor compelled the intercourse by force or by a threat of imminent death, serious bodily injury, extreme pain, or kidnapping directed at anyone.
If route (a) fails, ask in turn whether he covertly impaired her with drugs or other means for the purpose of preventing resistance, whether she was unconscious, and whether she was under ten years old.
If a route fits, grade the offense as a second-degree felony and then check whether serious bodily injury or the stranger prong raises it to the first degree.
If no route fits, check whether the facts satisfy one of the lesser grounds of gross sexual imposition.

The provision also carries the limits of its era. Article 213 was adopted in 1962 and was considered highly progressive then, but it does not look advanced today.⁴ The Code does not use sex-neutral terms for the actor or the victim, it retains the immunity of husbands, and most states have declined to adopt its definitions of rape.⁵ Those features are why the later section on modern reform treats the Code as a stage in the law's development and does not present it as the current standard.

Force or Extreme Threat

The first route covers the classic case in which the actor overpowers or terrorizes the victim. Under § 213.1(1)(a), the actor is guilty of rape if he compels her to submit by force or by a threat of imminent death, serious bodily injury, extreme pain, or kidnapping, to be inflicted on anyone.⁶ The operative verb is compels, which means the force or threat must be what produces the submission, and that ties the actor's aggression directly to the intercourse. Physical force that overcomes the victim suffices without further qualification. A threat counts only if it is a threat of one of the four named harms and is imminent. Because the harm may be inflicted on anyone, a threat to kill the victim's child or brother qualifies just as a threat against the victim does. The compulsion is the same either way: a victim who submits to protect someone she loves has been left no real choice.

Route (a) also differs from the traditional approach in where it looks for proof. The essential element of rape under the Code is the actor's use of force or a threat of serious physical harm, and the victim's nonconsent and resistance are not elements, so her behavior has evidentiary significance only.⁷ The Code acknowledges how hard it is for the prosecution to prove what an actor knew about consent when most rapes have no witnesses, and so it looks to the objective manifestations of aggression by the actor.⁸ The consequence is that a victim who did not fight back is not penalized by the definition. If force or a qualifying threat compelled her, route (a) is met without proof that she resisted and without proof that the actor knew she had not consented.

The limit that matters most when applying route (a) is the list of threatened harms. Threats short of those four harms do not satisfy it, however effective they were in producing submission. Lesser threats are not ignored. They fall under gross sexual imposition in § 213.1(2)(a), which asks whether the threat would prevent resistance by a woman of ordinary resolution and is covered in the next section.⁹

Covert Drugging

The second route addresses an actor who creates the victim's helplessness instead of overpowering her. Under § 213.1(1)(b), the actor is guilty of rape if he has substantially impaired her power to appraise or control her conduct by administering or employing drugs, intoxicants, or other means, without her knowledge, for the purpose of preventing resistance.¹¹ The clause has four parts: a substantial impairment of her power to appraise or control her conduct, caused by something the actor administers or employs, done without her knowledge, and done for the purpose of preventing resistance. Where an incapacity inquiry looks only at the woman's condition, this route adds two requirements about the actor, concealment and purpose.

Each added requirement has its own logic. Concealment explains why no force is needed: a woman who does not know she has been given a sedative cannot protect herself, because nothing warns her to refuse the next drink or leave the room. Purpose explains why the offense carries the rape label. The actor engineered the impairment in order to defeat resistance, so the drugging functions as the Code's substitute for force, and the culpable design is what separates this conduct from a bystander's carelessness about someone who happens to be impaired.

The reason students lose points here is that the phrase without her knowledge is easy to skip. An impaired victim is not enough by itself, because the clause reaches only impairment that the actor produced covertly and with the purpose of defeating resistance. A victim who is impaired by substances she knowingly took must be analyzed under the other routes or the lesser offense.

Unconscious Victim

The third route is the simplest in its terms: the actor is guilty of rape under § 213.1(1)(c) if the female is unconscious.¹³ The clause requires no force, no threat, and no covert act, because an unconscious woman can neither consent nor resist, so the compulsion element that drives route (a) has nothing to operate on. The victim's condition is the whole wrong. The text also does not ask how she came to be unconscious, so a woman who has passed out from alcohol she drank voluntarily is unconscious for purposes of the clause, while the same woman, awake and impaired, is not.

The contrast that decides close questions is the conscious victim who does not realize that a sexual act is taking place. The Code does not treat her under route (c). Gross sexual imposition in § 213.1(2)(c) covers the actor who knows that she is unaware that a sexual act is being committed upon her, or that she submits because she mistakenly supposes he is her husband.¹⁴ That lesser offense carries a third-degree grade and states the actor's knowledge as an element, while route (c) is a rape ground. The grading tracks helplessness: total unconsciousness is rape, and unawareness in a conscious victim is graded lower and requires proof of what the actor knew.

Victim Under Ten

The fourth route is the Code's version of the traditional rule that a very young child cannot consent. Under § 213.1(1)(d), a male who has intercourse with a female not his wife is guilty of rape if she is less than 10 years old.¹⁶ The prosecution does not have to show force, threat, drugging, or resistance, and the child's apparent willingness is beside the point, because a child of that age lacks the capacity to understand and appraise the act. Fixing the age in the text spares the prosecution and the jury from litigating each child's maturity, and the fixed line gives actors and courts a rule they can apply in advance.

The same fixed line works as a boundary. The clause reaches only a girl who is less than 10 years old, so a girl who has had her tenth birthday falls outside it. Intercourse with an older girl must be prosecuted under one of the other routes or the lesser offense, or under the separate offenses that older minors are handled by, which the statutory-rape material addresses.

Grading of Rape

The grading clause sets the default and the two ways to exceed it. Rape under § 213.1(1) is a felony of the second degree unless in the course of the offense the actor inflicts serious bodily injury upon anyone, or the victim was not a voluntary social companion of the actor on the occasion and had not previously permitted him sexual liberties, and in either case the offense is a felony of the first degree.¹⁸ The clause applies to all four routes, so a covert drugging or an assault on an unconscious victim is graded the same way as a forcible rape.

Each prong has its own function. The injury prong looks at the harm the actor causes beyond the violation of intercourse itself, and because the text says injury to anyone, it counts harm to a bystander who tries to intervene as well as harm to the victim. The second prong requires two conditions together: the victim was not a voluntary social companion on that occasion, and she had not previously permitted him sexual liberties. The effect is to reserve the highest grade for attacks by strangers. An acquaintance or date case stays at the second degree unless serious bodily injury is inflicted, which is why the definition can make prosecution of date-rape cases more difficult.¹⁹

Force or Extreme Threat

The first route in § 213.1(1) addresses the actor who gets intercourse by overpowering or terrorizing the victim. Under clause (a), a male who has intercourse with a female not his wife is guilty of rape if he compels her to submit by force or by a threat of imminent death, serious bodily injury, extreme pain, or kidnapping, to be inflicted on anyone.²¹ The verb that organizes the clause is compels. The force or the threat has to be what produces the submission, so the prosecution must tie the actor's aggression to the intercourse itself. Physical force that overcomes the victim satisfies the clause without any further qualification. A threat is treated differently: it qualifies only if it is a threat of one of the four named harms and only if that harm is imminent, which means a threat to kill the victim at some remote later time falls outside the clause as written.

The clause also leaves open whose safety is at stake. The threatened harm may be inflicted on anyone, so a threat to kill the victim's child or to kidnap a sibling counts just as a threat aimed at the victim does. The reason is functional. A person who is told that a loved one will die unless she submits has been left with no meaningful choice, and a rule confined to threats against the victim herself would leave some of the most effective coercion outside the offense. The test looks at what the threat does to the victim's freedom to refuse, and that effect does not depend on who stands in the line of fire.

The enumerated list of harms is where route (a) separates from the Code's lesser offense. Section 213.1(2)(a) makes it gross sexual imposition, a third-degree felony, for a male to have intercourse with a female not his wife by compelling her to submit through any threat that would prevent resistance by a woman of ordinary resolution.²² Both provisions involve compulsion by threat, so the difference lies entirely in the content of the threat and the way it is tested. Clause (1)(a) names the harms: death, serious bodily injury, extreme pain, and kidnapping. Clause (2)(a) names none and asks instead what the threat would do to a woman of ordinary resolution. Rape under § 213.1(1) is a felony of at least the second degree, one grade above gross sexual imposition, so limiting it to the gravest threats ties the most serious label to the most coercive conduct.²³ A threat that is effective but less grave is still punished, at the lower grade.

Route (a) also changes where the proof comes from. The essential element of rape under the Code is the actor's use of force or a threat of serious physical harm, and the victim's nonconsent and resistance are not elements, so her behavior has evidentiary significance only.²⁴ The drafters recognized how hard it is to prove what an actor knew about consent when most rapes have no witnesses, and so the clause looks to the objective manifestations of the actor's aggression.²⁵ The compulsion element already says something about the victim's will, because a person who submitted when force or an extreme threat left no alternative did not freely agree, and a separate nonconsent element would add little. A victim who did not fight back therefore loses nothing under route (a), and the prosecution need not prove either that she resisted or that the actor knew she had not consented.

Exam Analysis Steps

Because the clause turns on the kind of threat as much as on the fact of compulsion, it is best run in order, so that the force branch, the threat branch, and the fallback to the lesser offense stay distinct. The steps are these:

Identify the means the actor used to obtain submission, which is either physical force or a threat.
If the means was a threat, check that it was a threat of imminent death, serious bodily injury, extreme pain, or kidnapping, and remember that the person threatened may be anyone.
Confirm that the force or the qualifying threat actually compelled the submission, so that the aggression produced the intercourse.
If the threat fails step two, ask whether it would prevent resistance by a woman of ordinary resolution, which moves the case to gross sexual imposition under § 213.1(2)(a).

Hypothetical Illustration

An actor holds a knife to a victim's throat and says he will kill her unless she submits, and she does. A threat of imminent death compelled the submission, so route (a) is met, and the prosecution need not show that she struggled.

Change the target of the threat: the actor says he will kill the victim's young child, who is in the next room, unless she submits. Route (a) is met again, because the threatened harm may fall on anyone.

Change the content of the threat: the actor says he will send damaging private information to the victim's employer unless she submits. None of the four harms is threatened, so route (a) fails. If a factfinder concludes that the threat would prevent resistance by a woman of ordinary resolution, the offense is gross sexual imposition, a third-degree felony.

The error that costs the most on this route is treating any effective threat as enough for rape. Effectiveness is the test for the lesser offense, since the ordinary-resolution standard asks what a threat would do to a woman of that resolve.²⁶ Rape asks which harm the actor threatened and whether it was imminent. An exam fact pattern that features a frightened victim who submitted therefore needs a second question after the first: whether the threatened harm is one of the four named in clause (a), or whether the case belongs under § 213.1(2)(a).

Covert Drugging

Route (b) reaches the actor who does not overpower the victim at all but arranges for her to be unable to resist. Under § 213.1(1)(b), a male who has sexual intercourse with a female not his wife is guilty of rape if he has substantially impaired her power to appraise or control her conduct by administering or employing, without her knowledge, drugs, intoxicants, or other means, for the purpose of preventing resistance.²⁸ Route (a) asks whether force or a threat compelled submission, while this clause asks whether the actor produced a condition in which submission was all that remained open to her. The two routes share a structure, because in each the actor does something to the victim that removes her ability to refuse, and the Code treats both as rape for that reason. The text names drugs and intoxicants and then adds other means, so the clause is tied to no particular substance. What matters is that the means was used covertly, that it impaired her, and that the actor used it for a stated purpose.

Each part of the clause does a separate job. Substantial impairment of the power to appraise or control is the harm itself: appraising is the ability to understand what is happening, and controlling is the ability to act on that understanding, and because the text joins them with or, impairing either capacity qualifies. The word substantial separates a real loss of capacity from the mild loosening that a drink or a pill may produce. The knowledge element answers the question of who is responsible for the condition. A woman who knows what she is taking has made a decision about her own state, and the actor has taken nothing from her. When the substance is given or used without her knowledge, she has no chance to refuse it, to leave, or to protect herself, so the actor alone has authored her helplessness.

The purpose element does the subtlest work. It ties the covert impairment to the intercourse in much the way compels ties force to submission in route (a), because the actor must have used the means in order to prevent resistance, which makes the impairment an instrument of the offense rather than a coincidence. Knowledge and purpose together pick out engineered helplessness, and they exclude the actor who merely finds himself with a woman impaired by her own choice. The reason for drawing the line there is functional. A drug slipped into a drink to remove resistance does the same work as physical force, and a rule that treated it as lesser conduct would leave one of the most deliberate ways of overcoming a victim outside the rape provision. The Code also makes the victim's nonconsent and resistance matters of evidence rather than elements of rape, so the prosecution proves this route through what the actor did and what it did to her, and a woman who was unable to fight loses nothing for failing to do so.²⁹

Hypothetical Illustration

A man secretly stirs a sedative into a woman's drink, intending that she will be unable to stop him. She drinks it without knowing, becomes unable to understand what is happening or to act on her wishes, and he has intercourse with her. Every part of route (b) is present: the means, the lack of knowledge, the substantial impairment, and the purpose of preventing resistance.

Change one fact: the woman knowingly drinks heavily on her own, and the man adds nothing to her glass and has no plan to impair her. Nothing was administered or employed without her knowledge, and no purpose of preventing resistance exists, so route (b) is not satisfied. Whether some other provision of § 213.1 reaches the facts is a separate question.

Change a different fact: the man openly hands her a sedative, tells her what it is, and she takes it, though he hopes it will make her stop resisting. His purpose is present, but she knew what she was taking, so the without-knowledge element fails.

The common-law idea of incapacity is framed differently, and the contrast clarifies what route (b) demands. At common law, intercourse with a victim who lacked the capacity to consent, because she was unconscious, under the influence of drugs or intoxicating substances, or mentally incapable, was rape.³⁰ That rule looks to her capacity, and as stated it does not ask who caused her condition, whether she knew of it, or what the defendant intended. The common-law materials also separate two situations that route (b) cuts across. In one, the defendant administered a drug or intoxicant to deprive her of the capacity to resist, which counted as a variety of imposition like force. In the other, he took advantage of an incapacity he did not bring about, as when she was under the influence of drugs or intoxicants she took herself.³¹ Route (b) follows the first situation, since its text requires the actor's own covert administration and his purpose. Facts that would have satisfied a capacity-only rule must therefore satisfy the clause's own elements to come within this route, and the other routes, such as the one for an unconscious victim, have to be checked on their own terms.

The mistake that costs points here is to treat impairment alone as enough. A fact pattern that shows an intoxicated or drugged victim invites the conclusion that route (b) applies, but the clause reaches only impairment that the actor produced by administering or employing the means without her knowledge, and that he produced to prevent resistance. When a stem describes a victim who drank or took something knowingly, route (b) is out, and the analysis moves to the text of the other routes and the lesser offense. When the stem describes a hidden substance and an actor who wanted her unable to resist, the four parts of the checklist are usually all present.

Unconscious Victim

Route (c) is the simplest clause in § 213.1(1) to state. A male who has sexual intercourse with a female not his wife is guilty of rape if the female is unconscious.³³ The clause names no force, no threat, and no drug, and it asks for no purpose on the actor's part. It describes only the victim's condition at the time of the intercourse, and it says nothing about who or what caused that condition. Routes (a) and (b) each require the actor to do something that removes the victim's ability to refuse, either by compelling her submission or by covertly impairing her. Route (c) needs no such act, because unconsciousness has already removed that ability.

The reason for the clause can be read off the structure of the other routes. Compulsion presupposes a person who could otherwise decline, and an unconscious person can neither agree nor resist, so there is no will for the actor to overcome and nothing for the word compels to describe. Requiring proof of force on top of unconsciousness would ask the prosecution to show aggression against someone who was never in a position to push back. The Code already treats the victim's nonconsent and resistance as matters of evidence rather than elements of rape, and an unconscious victim is the case in which resistance is most obviously impossible.³⁴ The offense is therefore proved by two facts, the intercourse and her unconsciousness, and it carries the same second-degree grade as the other routes, rising to the first degree under the aggravating conditions in the grading clause.³⁵

The Code draws a sharp line between the unconscious victim and one who is awake but does not realize what is happening. Section 213.1(2)(c) makes it gross sexual imposition, a third-degree felony, for a male to have intercourse with a female not his wife when he knows that she is unaware that a sexual act is being committed upon her.³⁶ Two differences separate that offense from route (c). The victim in the lesser offense is conscious, so some capacity remains, and the offense turns on what the actor knew about her unawareness. The grading reflects a judgment that total helplessness is a graver condition than ignorance of the act, so unconsciousness sits in the rape provision and mere unawareness sits one grade lower.

The usual error is to treat unawareness as unconsciousness. A fact pattern that says the victim did not know what was happening invites the label of rape, but the first question is whether she was actually unconscious. If she was, route (c) applies without more. If she was awake, the analysis moves to the lesser offense, where the actor's knowledge of her unawareness decides the result.

Victim Under Ten

Route (d) is the shortest clause in § 213.1(1). A male who has sexual intercourse with a female not his wife is guilty of rape if the female is less than ten years old.³⁸ The clause lists no force, no threat, no covert impairment, and no unconsciousness, and it asks for no purpose on the actor's part. Once intercourse with a female not his wife is established, one further fact decides the case, which is her age on the day of the act. Routes (a) through (c) each describe something the actor did or a condition the victim was in at the moment of intercourse, while route (d) describes a status she carries whatever happened in the room. The prosecution therefore proves this route with the intercourse and the girl's age, and the offense takes the same second-degree grade as the other routes, subject to the aggravating conditions in the grading clause.³⁹

The clause is the Code's version of a much older rule. Under the traditional approach, a female under ten was deemed incapable of consent as a matter of law, so no manifestation of refusal by her was required, and the same was true of a woman so incapacitated that she could not give consent.⁴⁰ The phrase as a matter of law explains the mechanics: whether she agreed is never sent to the factfinder, because the law has already answered it. The answer follows from what consent requires, which is a decision by a person able to understand what is proposed and to weigh it, and the law's judgment is that a child this young can do neither. The unconscious victim in route (c) lacks a capable will because of her condition at that moment. The girl under ten lacks one because of her age, so there is again no capable will for the actor to overcome.

A bright-line age does two jobs that a case-by-case inquiry could not. The first is certainty: age can be shown by a birth record, and no one has to assess a particular child's maturity or understanding after the fact. The second is protection without inquiry into the child's apparent willingness. The actor is the person with the strongest motive to describe the encounter as something the child went along with, and a rule that let that account matter would force the trial to examine a young child about her own conduct. Making age sufficient removes the contention at the source. The Code already treats the victim's nonconsent and resistance as matters of evidence rather than elements of rape, because they are hard to prove when an offense usually has no witnesses.⁴¹ Route (d) carries that approach to its end point, since for a child under ten no behavior of hers could change the result.

The older girl in the second variation is not left unprotected by the rape provision. If the actor compels her submission by force or by a threat of imminent death, serious bodily injury, extreme pain, or kidnapping, route (a) reaches him, and the other routes remain available on their own facts. What disappears at ten is the status shortcut, the rule that age alone makes intercourse rape. Modern statutes have extended the protection of younger individuals by raising the age for so-called statutory rape, where no showing of nonconsent is necessary,⁴² and the separate statutory-rape reading that follows this one takes up how the law treats minors above the age that route (d) covers.

The usual error on an exam is to run a consent analysis on facts that never reach one. A stem that describes a young girl who said yes, or who did not struggle, invites the question whether she consented, and that question has no place when she is under ten. The first inquiry is her age: if she is less than ten, route (d) is satisfied by the intercourse and her age, and the facts about her words or conduct are irrelevant to the elements. If she is ten or older, the analysis returns to routes (a) through (c) and then to the provisions on minors.

Grading of Rape

The four routes in § 213.1(1) describe how rape can be committed, and the closing sentence of the subsection says how seriously the Code treats it once it has been. Rape by any route is a felony of the second degree. That holds whether the actor compelled submission, covertly drugged the woman, had intercourse with an unconscious woman, or had intercourse with a girl under ten. The baseline rises to a felony of the first degree in either of two situations: the actor inflicts serious bodily injury upon anyone in the course of the crime, or the victim was not a voluntary social companion of the actor on the occasion and had not previously permitted him sexual liberties.⁴⁴ The two upgrades are alternatives, so either one is enough, and neither depends on which of the four routes supplied the rape itself.

The very idea of grades marks a change from the older law. At common law rape was a single felony with no degrees, and like most common-law felonies it was punishable by death.⁴⁵ The capital history shows in the reported cases. The Alabama statute in Powell v. Alabama allowed punishment from ten years to death, and the Georgia statute in Gregg v. Georgia, as amended after Furman v. Georgia, kept the death penalty for rape among its capital crimes.⁴⁶ Today the Eighth Amendment limits how severely rape may be punished. Death is an excessive punishment for the rape of an adult woman under Coker v. Georgia, and Kennedy v. Louisiana later barred the penalty for child rape that does not result in the victim's death.⁴⁷ The Code takes a different course by writing degrees into the definition, so that grading and punishment can follow the culpability of the offender and the harm done to the victim.⁴⁸ Beneath rape it places gross sexual imposition as a third-degree felony, which completes a ladder running from third degree to first.⁴⁹

The first upgrade turns on harm. Under clause (i), rape becomes a first-degree felony when the actor inflicts serious bodily injury upon anyone in the course of the crime.⁵⁰ Three features of the wording carry the analysis. The word inflicts requires that injury actually occur. Route (a) already reaches a threat of serious bodily injury, so a threat that was never carried out makes the offense rape but does not by itself raise the grade. The word anyone means the injured person need not be the victim, so a companion or bystander seriously hurt while the actor carries out the crime counts. The phrase in the course thereof ties the injury to the rape, so harm unconnected to the crime does not change the grade. The reason is functional. Compelled intercourse is the wrong the baseline grade already measures, and serious injury is added harm that the Code counts inside the offense, so the verdict itself sets the grade and the matter is not left to sentencing alone.

The second upgrade turns on the relationship between actor and victim. Clause (ii) applies when the victim was not a voluntary social companion of the actor upon the occasion of the crime and had not previously permitted him sexual liberties.⁵¹ The two conditions are joined by and, so both must be true. A woman who was out with the actor by choice that evening stays within the second-degree grade even if she had never permitted him any liberties. A woman who had permitted him sexual liberties before, such as a former partner, stays there even if she was not his companion on the occasion. Together the conditions describe a stranger, someone with no voluntary connection to the actor either that night or earlier, and the clause treats the stranger attack as the more serious one. The commentary on the Code points out that this formulation can make prosecution in date-rape cases more difficult, because the acquaintance who was a voluntary companion on the occasion can never meet the stranger condition.⁵² By today's standards this grading distinction looks dated, and the American Law Institute, which wrote the Code, has been working toward revising its rape standards.⁵³

Hypothetical Illustration

A stranger attacks a woman who is walking home and compels her to submit by force. She was not his voluntary social companion and had never permitted him sexual liberties. Route (a) makes the offense rape, and clause (ii) raises it to a felony of the first degree, even though she suffers no serious bodily injury.

Change one fact: the woman had gone to dinner with the actor by choice that evening and had permitted him sexual liberties on earlier occasions. He compels her to submit by force, and no serious bodily injury results. The offense is still rape because route (a) is met, but clause (ii) is unavailable, so the grade stays at the second degree.

Change a different fact: the facts are those of the dinner companion, but in the course of the crime the actor inflicts serious bodily injury on a friend who tries to intervene. Clause (i) applies because the injury was inflicted on anyone in the course of the crime, so the offense is a felony of the first degree whatever the relationship between the actor and the victim.

Two mistakes recur on exams. The first is to treat a threatened injury as an inflicted one. A stem that describes a weapon and a threat of death has already satisfied route (a), and clause (i) still asks whether serious bodily injury was actually inflicted. The second is to treat either condition of clause (ii) as enough. Because the conditions are joined by and, a victim who was a voluntary companion on the occasion, or who had permitted sexual liberties before, takes the case out of clause (ii) even when the other condition is present.