Do you have to submit to sexual overtures if you generally sleep outdoors?

**** The information written here is not legal advice and the author of this blog is not your lawyer.  These posts merely contain ideas to help you plan and organize your legal research and identify potentially helpful sources of law. ****

Rape is rape, whether it is indoors or outdoors, whether it is done by a stranger or someone who knows the victim, and whether or not the victim has a home. It can be loosely defined as non-consensual sexual intercourse. Criminal law statutes against rape,[1] and the cases interpreting those, are consistent about the illegality of unwanted sexual contact, but have variations in every state. They define sexual contact in different ways and have diverse standards for how victims have to have conveyed their lack of consent.[2]Hospitals and police have cooperative systems for proving that the contact occurred. In every state, there are two problems in successfully prosecuting somebody for rape: identifying the attacker and proving that the contact was unwanted.  Clearly, even having one of those problems out of the way still leaves a very hard case to prove. If the victim has never seen and doesn’t know the attacker, it is hard to find the right perpetrator. Once that person is found, it is relatively easy to prove that the victim did not consent to having sex with the stranger.

In the opposite situation, when the identity of the attacker is known, the hard part is proving that the contact was unwanted.  Particularly hard to prosecute is the situation in which one homeless person has been raped by another homeless person who resides in the same shelter or outdoor area. The defendant’s attorney could ask the victim where he or she generally sleeps and then follow-up by asking something like, “then isn’t it true that you and the accused had essentially been sleeping together prior to the events of the alleged attack?”

Even when the attacker was unknown and not necessarily homeless, it is conceivable that a defense attorney might lead the jury to believe that a homeless rape accuser made him or herself available by sleeping outside or in a group setting. The prosecutors in those situations will look for guidance in the cases involving acquaintance rape, where courts have examined the concept of consent.

In cases of acquaintance rape, courts are in the odd position of analyzing social interaction[3] in order to figure out whether the crime occurred. To determine whether the victim consented to intercourse, they look at things like whether the victim and defendant were voluntary social companions,[4] and whether the accuser consented to some degree of affection, but not necessarily intercourse.[5]

A homeless victim who does not have a private space where he or she can go to avoid unwanted attention might also be burdened by jury presumptions that misinterpret those social considerations. They might think, for example, that the homeless are mentally ill and get hysterical after ordinary sex or that the homeless will do anything for money and might claim rape if they don’t get paid after sex.

A homeless victim of rape, or that victim’s friends and advocates, can help the case by educating the prosecutor about the victim’s daily life and the culture and routines in that homeless community. Those details can illustrate the homeless victim’s particular risks and limitations in trying to get away from attackers. It is not the kind of information that proves whether the crime occurred, but it will convey what kinds of protection and communication methods were available to the victim. It gives the prosecutor context for demonstrating to the jury how this particular sexual encounter was victimization and not consensual.

[i] State criminal codes are available at  Within a state’s code look under “sexual assault” or “sex crimes” if there isn’t a listing for “rape.” [ii] In public libraries, look for Frances P. Reddington and Betsy Wright Kreisel, SEXUAL ASSAULT: THE VICTIMS, THE PERPETRATORS, AND THE CRIMINAL JUSTICE SYSTEM (Carolina Academic Press, 2005). In law libraries, look for Wayne R. LaFave, CRIMINAL LAW Chapter 17 (West, 2003).

[iii] See generally, Note, Acquaintance Rape and Degrees of Consent: “No” Means “No,” but what does “Yes” Mean?, 117 Harv. L. Rev. 2341 (2004).

[iv] “Rape is a felony of the second degree unless … the victim was not a voluntary social companion of the actor upon the occasion of the crime … .” Model Penal Code § 213.1(1) (1985).  However, neither current state laws nor recent appellate cases name voluntary social companionship as a consideration in date rape cases, probably because contemporary social standards recognize that even if someone has willingly participated in sex with this attacker before, it does not mean that the sex was consensual this time.  Nevertheless, because it is still in the Model Penal Code and traditional cases include it, there is a chance that a victim might have to explain how he or she communicated differently with the defendant when the sex was consensual compared to when it wasn’t acceptable to the victim.

[v] Acquaintance Rape and Degrees of Consent: “No” Means “No,” but what does “Yes” Mean?, supra at 2346.