Rape and Statutory Rape

The crime of rape -- including statutory rape -- explained, with case examples.

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Rape is nonconsensual sexual intercourse, often consisting of unwanted intercourse accomplished by means of force or fear. One variation of rape -- called statutory rape -- disregards consent issues and makes it unlawful to have sex with a minor under the age of 18. This article defines the crime of rape and presents real world examples of criminal cases involving rape.

Legal Definition of Rape

For purposes of rape laws, sexual intercourse occurs at the moment of sexual penetration, however slight.

The most typical form of rape is forcible rape, in which a rapist uses violence or threats of violence to coerce a victim into sexual intercourse. In most states, however, rape can also occur in a number of other ways. For example, rape generally also consists of sexual intercourse occurring under these conditions:

  • the rapist prevents a victim from resisting by plying the victim with alcohol or drugs
  • the rapist poses as a public official and threatens to arrest or deport the victim unless the victim agrees to sexual intercourse, or
  • the rapist knows that the victim has a disorder or disability that prevents the victim from legally consenting to sexual intercourse.

Degrees of rape. In some states, first degree rape may consist of rape accompanied by severe physical injuries. First degree rape carries a harsher punishment than second degree rape, which may involve no physical injuries beyond the rape itself.

Rape between married partners. In most states, if sexual intercourse is nonconsensual within the meaning of the rape laws, the fact that the parties are married is irrelevant. Of course, the fact that the alleged rapist is her husband may make it more difficult for a wife to convince the police or a judge or jury that rape rather than consensual intercourse took place.

Female offenders. In a few instances, females have been convicted of rape when they have been the accomplices of males and have lured a victim to a place where a rapist awaits.

Rape: Case Example 1

Facts: Belinda is sleeping when Stan breaks into her apartment, pulls out a knife, and threatens to use it unless Belinda agrees to sexual intercourse. Belinda pleads with Stan to leave, but he refuses and begins to strike her. Eventually Belinda gives Stan a condom and says, "At least use protection." Stan uses the condom while having sexual intercourse with Belinda.

Verdict: Stan is guilty of rape. The sexual intercourse was forcible, not consensual. Belinda's request that Stan use a condom is not evidence of consent, but rather an effort to suffer as little future harm as possible.

Rape: Case Example 2

Facts: Amanda goes out to dinner with her boss Fred. After dinner, Fred suggests that "we go back to my office and enjoy ourselves." Amanda has heard that Fred has been violent in the past. Fearing both that Fred may hurt her and that her career may suffer if she doesn't go along, Amanda agrees to go back to the office and engages in sexual intercourse with Fred.

Verdict: Fred is not guilty of raping Amanda. Fred neither used force nor threatened harm to Amanda. Her subjective fear based on what she has heard about Fred doesn't invalidate her consent. Of course, Amanda may have a valid civil claim against Fred and the company for workplace sexual harassment. (Learn more in Nolo's article Fighting Sexual Harassment.)

Rape Evidence Rules -- Dramatic Changes

Until the mid-1970s, evidence rules tended to discourage rape victims from reporting the crime. Since then, largely as the result of political pressure from women's rights groups and their allies, two dramatic shifts in rape evidence laws favorable to rape victims have taken place. First, rape shield laws often prevent defendants from inquiring into rape victims' sexual histories. Second, in most states, the general rule forbidding inquiry into defendants' past crimes has been abandoned in sexual offense cases. When a defendant is charged with rape or another sexual offense, the prosecution can offer evidence of the defendant's past sexual offenses.

"Stranger Rape" vs. "Date Rape"

"Stranger rape" occurs when a rape victim is attacked by a previously unknown person. For example, an assailant who violently drags a passerby into a secluded spot and rapes her commits a stranger rape. Date rape occurs when the rapist and the rape victim have an existing social relationship and the rapist strikes in the course of that relationship. For example, a date rapist may prevent a woman from refusing to have sexual intercourse by drugging her drink while they are out on a date. Date rape is far more common than stranger rape. While both are equally illegal, the ambiguities that are inherent in many social situations make date rape a far more difficult crime to prove than stranger rape.

Statutory Rape

Statutory rape consists of sexual intercourse with a minor, defined in most states as someone who is under age 18 or 16 (depending on the state) at the time intercourse takes place. The minor's outward consent to intercourse is irrelevant. Statutory rape laws are strict liability laws that make a minor legally incapable of consenting to sexual intercourse. The assumption behind statutory rape laws is that someone under the age of 16 or even 18 does not have the mature mental capacity to voluntarily consent to intercourse. In many states, statutory rape is a felony only if one of the participants (usually a male) is at least three years older than the other; otherwise, it is a misdemeanor.

A minor can be guilty of statutory rape of another minor. If two 16-year-olds engage in sexual intercourse, in many states each could be prosecuted for statutory rape. In other states, only males can be prosecuted for statutory rape. Of course, such cases are rarely prosecuted. Even when they are, laws in many states make concessions to the frequency of sexual intercourse among minors in modern society. So long as one minor is not more than three years older than the other minor, statutory rape is often a misdemeanor rather than a felony.

Finding a Good Criminal Law Attorney

One good way to find a criminal defense lawyer is to ask friends, acquaintances, or other lawyers for referrals -- and then interview the candidates. In addition, Nolo provides a personalized Lawyer Directory with information about each lawyer's experience, education, and fees, and perhaps most importantly, the lawyer's general philosophy of practicing law. By using Nolo's directory you can narrow down candidates before calling them for a phone or face-to-face interview.

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