Criminal Law, Pages 361–368

State v. Jones

Court of Appeals of Idaho, 2011
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A.S., Carpenter's fiancée, had been having an affair with Jones for ~4 years. After a trip to Nevada, they returned to A.S.'s apartment and decided to end their affair after returning to Idaho. However, they had still had consensual sex the next morning. Later that morning, Jones began touching A.S. again, who protested, but he pushed her down, pinned her arms under her body, and forcibly had intercourse with her.

A.S. called a women's center and talked to a counselor, but declined to call the police. She continued to be friends with Jones and went on another trip with him a few days later.

A few days after that, Jones was watching movies at A.S.'s apartment. A.S. had taken both a prescribed anti-anxiety medication and an over-the-counter antihistamine, which both caused drowsiness. As such, she was just laying on the couch. Jones came over and began to stroke and then pull her hair. When A.S. did not respond, Jones began to grope her and then have intercourse with her. A.S. was "paralyzed by fear" and did not respond to Jones's actions despite actually being conscious.

Jones was charged with two counts of forcible rape based on the two incidents.

Procedural History:

The jury convicted Jones of both charges.


  • Did A.S. resist?

  • Did Jones overcome A.S.'s resistance?

Defendant's Argument:

The Idaho rape statute at the time required that the female "resists but her resistance is overcome by force or violence."


  • The statute does not define "resistance." At common law, "resistance" required the woman to resist to the utmost of her physical capacity. However, this made rape almost impossible to prove, so most states have eliminated it. Some only require "earnest" resistance, and some "reasonable" resistance, but most have abandoned the resistance requirement altogether, some explicitly saying its not required.

    Washington however is still like Idaho in just requiring overcoming "resistance." However, its courts have repeatedly held that physical resistance is not required. This is good. Physical resistance is not required by the wording of the statute. It has also been established that a victim is not needed to resist to her utmost ability. Resistance is only important to show that the assailant intended to use force and that the victim did not consent. To hold otherwise would defeat the point of the statute.

    Here, A.S. explicitly told Jones to stop in the first instance, so she resisted. She did not resist on the second count.

  • There is also a disputer as to whether extrinsic force is needed beyond the sexual act or if the force intrinsic in the act itself is sufficient force. As the Idaho statute specifies that the force must "overcome" resistance, extrinsic force must be required as similar statutes have been held to require in other states.

    The amount of extrinsic force required is not significant however. Pushing someone down, as Jones did in the first instance here, is sufficient.


On the first count, A.S. resisted and Jones used extrinsic force to overcome this resistance. Jones's conviction as to the first count affirmed and as to the second count vacated.