Rape and Statutory Rape

Rape and statutory rape charges are serious. A conviction for either sex crime can result in prison time, sex offender registration, and loss of professional licensing. Learn how states define and punish rape and statutory rape, what the prosecution must prove, and what defenses might be available.

How Is Rape Defined?

Each state defines and punishes crimes differently. Commonly, states define rape as engaging in sexual intercourse or penetration (no matter how slight) with another person against their will or without their consent. Sexual intercourse or penetration generally includes vaginal, oral, and anal sex involving a body part or foreign object.

Different Legal Names for Rape

Some states have moved away from the term rape and, rather, refer to this crime as sexual assault, criminal sexual conduct, or something similar. Whatever it's called, most states (if not all) make rape involving nonconsensual sexual penetration a felony offense.

Defining Consent

Consent for sexual relations must be affirmative and freely given by someone who has the legal, physical, and mental capacity to consent. For example, a person who says "no" hasn't given affirmative consent. Neither has the person who is unconscious, passed out, or physically helpless. A person who's been threatened by the offender or submits to their position of authority also hasn't voluntarily consented. Most states also provide that children younger than a certain age cannot legally consent to sexual relations, which is discussed next.

How Is Statutory Rape Defined?

A person commits statutory rape when they have sexual intercourse or penetration with someone younger than the legal age of consent. States have decided that children younger than a certain age cannot give informed consent to sexual relations. So, even if the offender and victim agree to have sex, criminal charges are possible.

Different Legal Names for Statutory Rape

Many states no longer use the term "statutory rape" in their laws. These crimes might fall under the state's rape crimes or use a different term entirely. In New York, for instance, statutory rape offenses fall under criminal charges for rape, criminal sexual acts, sexual abuse, or sexual misconduct, depending on the ages of the parties.

Legal Age of Consent Varies by State

In many states, the age of consent ranges from 16 to 18. Having sexual relations with someone under the age of consent is a crime. This is a strict liability offense in most states, which means it doesn't matter if the offender thought the partner was older or the partner claimed to be older. (A few states allow reasonable mistake-of-age defenses in limited circumstances.)

Romeo-and-Juliet Laws

Some states have "Romeo-and-Juliet" laws that don't criminalize sexual relations between teens who are close in age. For instance, a state might set the standard age of consent at 16 but also provide that no crime occurs if one consenting party is age 14 or 15 and the other is not more than 4 years older. Alternatively, a state might reduce the penalties for close-in-age teens who engage in sexual relations—for instance, making the offense a misdemeanor rather than a felony.

Very Young Children

Having sexual intercourse or penetration with a child younger than 11 or 12 is often considered a crime no matter the ages of the parties. Mistake-of-age defenses and Romeo-and-Juliet laws don't apply. Many states consider this type of offense to be rape or an aggravated statutory rape crime.

What Are the Differences Between Rape and Statutory Rape?

Rape and statutory rape differ primarily as to criminal elements of consent and proof of culpability.

Actual vs. Legal Consent

Allegations of rape involve nonconsensual sexual intercourse or penetration, where the victim does not or cannot give consent. These situations may involve the use of force, threats, or fraud or when a victim is physically or mentally incapacitated.

Prosecutors can file statutory rape charges even when sex between the parties was consensual if at least one party was younger than the legal age of consent. State law defines what the legal age of consent is.

Proving Rape vs. Statutory Rape

In a rape prosecution, the prosecutor must establish that the offender knowingly engaged in sexual intercourse or penetration without the other's consent. The prosecution must prove every element of the crime beyond a reasonable doubt (a near-certainty standard). To establish a higher degree of rape, the prosecutor might also need to present evidence of force, threats, violence, or drugging.

Prosecutors in statutory rape cases need only show that the sexual act occurred and the parties' ages on that date. It doesn't matter if the defendant thought the person was of age. Strict liability offenses don't require a defendant to act with a culpable state of mind. The legal standard is the same—proof beyond a reasonable doubt.

What Are the Penalties for Rape vs. Statutory Rape?

The penalties for rape and statutory rape vary depending on state law, the facts of the case, and the age of the parties. States typically divide these offenses into different degrees with increasing penalties for more egregious crimes and repeat sex offenses. For most rape and statutory convictions, a defendant will be required to register as a sex offender.

Degrees of Rape

Rape involving force, violence, weapons, harm, an incapacitated victim, or a very young child often falls under first-degree or aggravated rape offenses. These crimes carry harsh penalties, ranging from decades to life in prison. A person might also face a mandatory minimum sentence.

Second-degree rape may involve offenders who use fraud, their position of authority, or threats of violence to gain a victim's compliance. This offense level often carries serious penalties, as well, with a decade or more in prison possible.

If a state has a third-degree crime, this offense level could involve sexual contact not involving penetration or any other circumstances that don't fall under the harsher offense levels. Penalties might range from five to 10 years of prison time.

Degrees of Statutory Rape

States often have different degrees or offense levels for statutory rape crimes based on the ages of the victim and defendant.

The harshest penalties generally apply when the child is younger than 11 or 12 and the defendant is an adult. This type of statutory rape offense could carry punishments similar to first-degree or aggravated rape. A convicted defendant could face decades in prison.

Felony penalties typically apply to other wide age gaps, especially when the defendant is an older adult. For instance, a state might harshly punish statutory rape involving a defendant who's older than 21 and a victim who's at least five years younger. A defendant could face a decade or more in prison for this offense.

As the age gap closes, a statutory rape conviction may still carry felony penalties but with lower maximum sentences. States with Romeo-and-Juliet exceptions may provide misdemeanor penalties (or no penalties) for teens who are close in age. These teens might also avoid sex offender registration.

Defenses to Rape and Statutory Rape Charges

Defenses for rape and statutory rape charges are vastly different.

Defenses to Rape Charges

In rape cases, the most common defense is consent. Another common defense strategy is arguing penetration didn't occur, so the defendant can only be charged with a sexual contact crime. Defendants who claim innocence might present an alibi defense or argue that the victim or any eyewitnesses were mistaken. The defendant only needs to raise doubt in the minds of the jurors to get an acquittal.

Being married is not a defense to rape charges. Having consensual sex in the past also doesn't constitute a defense.

Defenses to Statutory Rape Charges

Defenses in statutory rape cases depend a lot on the state laws. Because statutory rape is a strict liability crime, the law often doesn't care if the defendant didn't know the person was younger than the age of consent. A defense might be limited to proving the sex never occurred or the prosecution has the date wrong and the victim was actually of age.

As noted above, some states permit a reasonable mistake-of-age defense. But even if the defense exists, it generally applies only to a mistake that the victim was older than 15, 16, or 17. Mistake of age doesn't usually apply to very young victims in most cases.

Getting Legal Help

Anyone facing a criminal investigation or charges for rape or statutory rape should talk to an attorney, as soon as possible and before answering police questions. A criminal defense attorney or public defender can help protect your rights and zealously defend your case. Both rape and statutory rape convictions can result in sex offender registration, which will impact your life long after any sentence of incarceration ends.