Problem: Did He Voluntarily Abandon His Attempt to Rape?

HISTORY: David Le Barron was convicted of attempted rape and sentenced to not more than 15 years in prison. He appealed. The Wisconsin Supreme Court affirmed the conviction. CURRIE, J. FACTS On March 3, 1965, at 6:55 p.m., the complaining witness, Jodean Randen, a housewife, was walking home across a fairly well-traveled railroad bridge in Eau Claire, Wisconsin. She is a slight woman whose normal weight is 95 to 100 pounds. As she approached the opposite side of the bridge, she passed a man who was walking in the opposite direction. The man turned and followed her, grabbed her arm, and demanded her purse. She surrendered her purse and at the command of the man began walking away as fast as she could. Upon discovering that the purse was empty, he caught up with her again, grabbed her arm, and told her that if she did not scream he would not hurt her. He then led her-willingly, she testified, so as to avoid being hurt by him-to the end of the bridge.

While walking he shoved her head down and warned her not to look up or do anything and he would not hurt her. On the other side of the bridge along the railroad tracks there is a coal shack. As they approached the coal shack he grabbed her, put one hand over her mouth, and an arm around her shoulder and told her not to scream or he would kill her. At this time Mrs. Randen thought he had a knife in his hand. He then forced her into the shack and up against the wall. As she struggled for her breath he said, "You know what else I want," unzipped his pants and started pulling up her skirt. She finally succeeded in removing his hand from her mouth, and after reassuring him that she would not scream, told him she was pregnant and pleaded with him to desist or he would hurt her baby. He then felt her stomach and took her over to the door of the shack, where in the better light he was able to ascertain that, under her coat, she was wearing maternity clothes. He thereafter let her alone and left after warning her not to scream or call the police, or he would kill her. OPINION The material portions of the controlling statutes provide: § 944.01(1), Stats. Any male who has sexual intercourse with a female he knows is not his wife, by force and against her will, may be imprisoned not more than 30 years. § 939.32(2), Stats. An attempt to commit a crime requires that the actor have an intent to perform acts and attain a result which, if accomplished, would constitute such crime and that he does acts toward the commission of the crime which demonstrate unequivocally, under all the circumstances, that he formed that intent and would commit the crime except for the intervention of another person or some other extraneous factor. The two statutory requirements of intent and overt acts which must concur in order to have attempt to rape are as follows:

(1) The male must have the intent to act so as to have intercourse with the female by overcoming or preventing her utmost resistance by physical violence, or overcoming her will to resist by the use of threats of imminent physical violence likely to cause great bodily harm;

(2) the male must act toward the commission of the rape by overt acts which demonstrate unequivocally, under all the circumstances, that he formed the intent to rape and would have committed the rape except for the intervention of another person or some other extraneous factor. The thrust of defendant's argument, that the evidence was not sufficient to convict him of the crime of attempted rape, is two-fold: first, defendant desisted from his endeavor to have sexual intercourse with complainant before he had an opportunity to form an intent to accomplish such intercourse by force and against her will; and, second, the factor which caused him to desist, viz., the pregnancy of complainant, was intrinsic and not an "extraneous factor" within the meaning of sec. 939.32(2), Stats. It is difficult to consider the factor of intent apart from that of overt acts since the sole evidence of intent in attempted rape cases is almost always confined to the overt acts of the accused, and intent must be inferred therefrom. In fact, the express wording of sec. 939.32(2), Stats. recognizes that this is so. We consider defendant's overt acts, which support a reasonable inference that he intended to have sexual intercourse with complainant by force and against her will, to be these:

(1) He threatened complainant that he would kill her if she refused to cooperate with him;

(2) he forced complainant into the shack and against the wall; and

(3) he stated, "You know what else I want," unzipped his pants, and started pulling up her skirt.

The jury had the right to assume that defendant had the requisite physical strength and weapon (the supposed knife) to carry out the threat over any resistance of complainant. We conclude that a jury could infer beyond a reasonable doubt from these overt acts of defendant that he intended to have sexual intercourse with defendant by force and against her will. The fact that he desisted from his attempt to have sexual intercourse as a result of the plea of complainant that she was pregnant would permit of the opposite inference. However, such desistance did not compel the drawing of such inference nor compel, as a matter of law, the raising of a reasonable doubt to a finding that defendant had previously intended to carry through with having intercourse by force and against complainant's will. The argument that the pregnancy which caused defendant's desistance does not qualify as an "extraneous factor" is in conflict with our holding in State v. Damms. [See case excerpt under "Impossibility: ‘Stroke of Luck.'"] AFFIRMED.

Questions: 1. List all the facts relevant to deciding whether Le Barron had the intent to rape Jodean Randen.

2. At what point, if any, did his acts cross the line from preparation to the actus reus of attempt under Wisconsin law?

3. Describe the details surrounding Le Barron's decision to abandon the attempted rape of Randen.

4. Why did Le Barron abandon his attempt to rape Randen? Because he believed it was morally wrong to rape a pregnant woman? Or did the pregnancy simply repel him sexually? Does it matter? Explain your answer.

5. Is Le Barron equally dangerous, whichever reason led to interrupting the rape? Explain.

6. The Court said a jury could have concluded Randen's pregnancy was either an extraneous factor he couldn't benefit from or an intrinsic factor.