e, if the jury decided to convict, the court of appeals usually overturned the decision. In 1889, the Supreme Court of Nebraska reversed a conviction, reasoning that, voluntary submission by the woman, while she has the power to resist, no matter how reluctantly yielded, removes from the act an essential element of the crime of rape if the carnal knowledge was with the consent of the woman, no matter how tardily given, or how much force had theretofore been employed, it is no rape.(Estrich 29) Although rape is not the only crime to permit a consent defense, it is the only crime in which the victim must demonstrate nonconsent though physical force. To add insult to injury, the woman must also prove that she not only used physical force, but that the physical force used was adequate to express her wishes. The Supreme Court of Wisconsin overturned a conviction of simple rape because the victim, in the eyes of the court, did not meet the standard for exercising adequate force. The court stated that, Not only must there be entire absence of mental consent or assent, but there must be the most vehement exercise of every physical means or faculty within the womans power to resist the penetration of her person, and this must be shown to persist until the offence is consummated.(Estrich, 30) Or, according to the courts of Texas, if she does not put forth all the power of resistance which she was capable of under the circumstances, it will not be rape.(Estrich 31) This standard of utmost resistance allowed for an acquittal, not by judging the man and finding his behavior legitimate, but by judging the woman and finding her conduct substandard.(Estrich 32) In general, the resistance requirement was only applied in appropriate relationships. Thus, in a case of stranger rape, the woman was not required to show that she had performed the utmost resistance. In cases of simple rape, however, the resistance requirement was implemented, making...
