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The situation I'm thinking of is the one depicted in A Woman in Berlin. The setting is the end of World War 2 with Soviet armies in Berlin engaging in mass rapes. The woman in question, after being raped several times, decides to seek protection from a Soviet officer. The officer protects her from being raped by common soldiers, and also provides "bacon, butter, sugar, candles, canned meat".

Does the officer engage in rape? The woman thinks no: she writes that "By no means could it be said that the major is raping me" and that she is "placing [herself] at his service of [her] own accord". However, can it be argued she is acting under duress?

I am most interested in modern law, although if anyone knows about what the laws were like in 1945 Germany that would be interesting too.

Related: Why must victims of 'sex-for-rent' arrangements be legally defined as prostitutes to seek justice? which indicates that the woman becomes a prostitute in the eyes of the law (something considered by the author as well), but doesn't clarify if the officer engages in rape.

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  • Absent a "Controlling Legal Authority" soviet soldiers can do whatever they please.
    – emory
    Sep 26 at 2:50
  • 1
    @emory can you cite a source for that statement? Sep 26 at 3:09
  • I know this may sound cynical but I don't think the situation the woman is in is materially different from what being a wife is for many, if not most, women: essentially, serving sex to one man in exchange for comfortable (or even happy) living.
    – Greendrake
    Sep 26 at 3:50
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    @Greendrake A marriage includes a legal obligation to continued support during its continuance, and in many cases after its end. It also includes legal rights to inheritance. It also includes a degree of social sanction and approval. It also usually includes a promise and expectation of permanence or at least durability. The situation described in the question includes none of these legal rights, and may not include social approval or any expectation of durability. It is different in at least those ways Sep 28 at 18:01
  • @DavidSiegel But the situation fits the definition of de-facto partnership / cohabitation, doesn't it? In some jurisdictions (New Zealand) this barely differs from formal marriage in terms of legal implications.
    – Greendrake
    Sep 29 at 5:58
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Socially the woman has become a "kept woman". It would not be rape, at least in most jurisdictions, because the officer is using neither force nor threats of force. The duress is from her economic and general circumstance, and most jurisdictions would not consider that to be rape. At least technically, this is a form of prostitution, but a form very rarely prosecuted.

Maryland

is a not untypical jurisdiction as US law goes in such matters. § 3-303 of the Naryland Criminal Code (Rape in the first degree) provides that:

(a) Prohibited. -- A person may not:

(a) (1)
(a) (1) (i) engage in vaginal intercourse with another by force, or the threat of force, without the consent of the other; or
(a) (1) (ii) engage in a sexual act with another by force, or the threat of force, without the consent of the other; and

(a) (2) (a) (2) (i) employ or display a dangerous weapon, or a physical object that the victim reasonably believes is a dangerous weapon;
(a) (2) (ii) suffocate, strangle, disfigure, or inflict serious physical injury on the victim or another in the course of committing the crime;
(a) (2) (iii) threaten, or place the victim in fear, that the victim, or an individual known to the victim, imminently will be subject to death, suffocation, strangulation, disfigurement, serious physical injury, or kidnapping;
(a) (2) (iv) commit the crime while aided and abetted by another; or
(a) (2) (v) commit the crime in connection with a burglary in the first, second, or third degree.

Section 3-304 (Rape in the first degree) provides that:

(a) A person may not engage in vaginal intercourse with another:
(a) (1) by force, or the threat of force, without the consent of the other;
(a) (2) if the victim is a mentally defective individual, a mentally incapacitated individual, or a physically helpless individual, and the person performing the act knows or reasonably should know that the victim is a mentally defective individual, a mentally incapacitated individual, or a physically helpless individual; or
(a) (3) if the victim is under the age of 14 years, and the person performing the act is at least 4 years older than the victim.

Sections 3-306 thru 3-307 have similar provisions but they mention "sexual act" rather than "intercourse" and they do not define the crime as "rape" but as "sexual offense". But the emphasis on force or threat of force, and lack of consent is much the same.

So it seems that under Maryland law, at least, the situation described in the question would not be legally "rape" nor a "sexual offense".

Maryland Criminal code § 11-301 (2018) defines prostitution in subsection (c) which reads:

(c) Prostitution. -- "Prostitution" means the performance of a sexual act, sexual contact, or vaginal intercourse for hire.

Whether the provision of food, shelter, and protection by one person to another in return for sex would be considered "for hire" is arguable. In practice such arrangements, even if they also involve cash payment, are rarely if ever prosecuted.

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  • I'm not even convinced that this would technically constitute prostitution. Friends with benefits?
    – ohwilleke
    Sep 28 at 3:54
  • @ohwilleke but the situation described in the question has some elements of a protection racket, and it would be one if the soldiers from whom the officer is protecting the woman had actually been instructed by him to rape her to make her receptive to his offer of protection. If her sexual relationship with him is motivated by the threat of force from third parties who (unbeknownst to her) are his agents, would that be rape?
    – phoog
    Sep 29 at 12:32
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    @phoog O.K., that's a creative variation on the original fact pattern. It still isn't rape, which is evaluated from the woman's subjective knowledge (subject to exceptions not present here of legal justification.) In U.S. law it would probably be solicitation of extortion or racketeering or abuse of office. It also occurred to me that while it probably isn't rape or prostitution, the conduct in the question might probably violate non-rape, non-prostitution U.S. Code of Military Justice offenses, or break military orders for this engagement, and the expanded situation you describe surely would.
    – ohwilleke
    Sep 30 at 20:18

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