Rape Laws

The crime of rape, often referred to as sexual assault, occurs when someone engages in non-consensual sexual conduct against another person. Rape may involve the use or threatened use of physical force or other forms of coercion or duress. It may also occur when someone engages in sexual conduct with a person who cannot provide legal consent. 

This can include an underage minor, an intoxicated person, or a drugged person. It might also include a mentally disabled person.

The antiquated common law definition of rape focused on the sex of the victim and the use of force. It defined rape as intercourse by a man against a woman who is not his wife, by force or threat, and against her will. Most states have restated and broadened the statutory definition of rape and sexual assault. Today, rape is not confined to issues related to marital status and gender. The victim's lack of consent is the crucial element.

Rape and other forms of sexual abuse remain serious problems in the U.S. today. Government estimates indicate that over 325,000 incidents of rape and sexual assault occur each year. This article will provide federal and state law definitions of rape. It will also discuss penalties and defenses.

Federal and State Rape Laws

The federal Department of Justice (DOJ) provided an updated definition of rape in 2012 that still helps guide federal and state laws. It states that rape includes:

The penetration, no matter how slight, of the vagina or anus with any body part or object, or oral penetration by a sex organ of another person, without the consent of the victim.

State and local prosecutors file the vast majority of rape and sexual assault charges occurring within their state, but federal law also addresses such crimes when they occur on federal property, during interstate travel, and in other circumstances.

Federal law creates crimes prohibiting aggravated sexual abuse and sexual abuse. Sexual abuse occurs when one knowingly causes another to engage in a sex act by:

  • Threatening or placing the other person in fear
  • Engaging in a sex act with another when the other person is incapable of understanding the conduct or is physically incapable of declining participation or communicating their unwillingness
  • Engaging in a sex act with another without the other person's consent, including through coercion

Aggravated sexual abuse occurs when the sexual offense includes the use of force against the alleged victim or threatens or places them in fear that any person will be subject to death, serious bodily harm, or kidnapping. It can also occur when the offender provides the rape victim with a drug or substance to impair their ability to appraise the conduct, or when the victim is a child.​

A conviction for either federal sexual abuse charge can lead to a fine and a prison sentence of a term of years to life. If the victim is a child, the prison term may begin at 30 years.

State laws often include similar elements. For example, Pennsylvania law defines the crime of rape as engaging in sexual intercourse with another under any of the following circumstances:

  • By forcible compulsion
  • By threat of forcible compulsion that would prevent resistance by a person of reasonable resolution
  • When the other person is unconscious or where the offender knows that the other person is unaware that sexual intercourse is occurring
  • When the offender has substantially impaired the other person's power to appraise or control his or her conduct by administering or employing, without the knowledge of the other person, drugs, intoxicants, or other means for the purpose of preventing resistance
  • When the other person suffers from a mental disability which renders them incapable of consent

Rape is a first-degree felony. Upon conviction, an offender can face up to 20 years in state prison and/or a fine of up to $25,000. If the offender provided the victim with drugs to induce euphoria or memory loss, an enhancement can provide another 10 years in prison and/or a fine of up to $100,000.

If the victim of the offense is a child under 13 years of age, the penalty increases, and the offender may face up to 40 years in prison and/or a fine of up to $25,000. If such a child victim suffers serious injury, then the court may impose a life sentence.

In some states, rape is classified as a first-degree felony or an aggravated sexual assault. The term sexual assault is broader than rape and covers a whole range of nonconsensual sexual contact.

How Does the Law Define Consent?

Consent means agreement. In other words, when a person engages in sexual conduct with another person, both persons must agree to it. If at any time a sexual partner says "stop" or seeks to end the encounter, the other partner must do so.

Consent can be expressed or implied. States may provide laws defining what they consider to be valid consent or, conversely, what constitutes a non-consensual act.

For example, the Texas Penal Code crime of sexual assault lists situations that the state concludes demonstrate a lack of consent. They include:

  • Forcing the other person to submit or participate by the use of physical force, violence, or coercion
  • Forcing someone to submit or participate by threatening to use force or violence, and the other person believes that the actor has the present ability to execute the threat
  • The other person has not consented, and the actor knows the other person is unconscious or physically unable to resist
  • The actor knows that, as a result of a mental disease or defect, the other person is incapable either of understanding the act or resisting it at the time it takes place
  • The other person has not consented, and the actor knows the other person is unaware that the sexual assault is occurring
  • Administering any substance without the other person's knowledge that impairs their ability to understand or control their conduct
  • Threatening to use force or violence against another person, and the victim believes that the actor has the ability to execute the threat
  • The actor is a public servant who coerces the other person to submit or participate
  • The actor is a mental health services provider or a health care services provider who exploits a patient or former patient
  • The actor is a clergyman who exploits their relationship as someone's spiritual adviser
  • The actor is an employee of a facility where the other person is a resident, unless the employee and resident are formally or informally married to each other under the State Family Code
  • The actor is a health care services provider who, in the course of performing an assisted reproduction procedure on the other person, uses human reproductive material from a donor, knowing that the other person has not expressly consented to the use of material from that donor
  • The actor is a coach or tutor who uses their power or influence to exploit the other person's dependency on them
  • The actor is a caregiver hired to assist the other person with activities of daily life and causes the other person to submit or participate by exploiting the other person's dependency on them

In most circumstances, sexual assault in Texas is a second-degree felony. An offender's sentence can include anywhere from two years to 20 years in state prison and/or a fine of $10,000. If the victim of the offense is a child under 17 or a person the offender could not legally marry, then the offense is a first-degree felony. The possible sentence increases to five years to 99 years in prison and/or a fine of $10,000.

Evidence Concerns in Rape Cases

In every criminal case, prosecutors must prove each element of the crime beyond a reasonable doubt to get a conviction. Aside from the issue of consent, the state must prove there was sexual conduct. This may be sexual penetration of the victim through vaginal or anal sex. Sexual conduct also includes oral sex. Each different instance of sexual conduct can serve as an independent count of rape.

Proof of a non-consensual sexual act may rely on victim or witness testimony. It may also arise from the circumstances present in the case. Police and prosecutors will seek out physical evidence of the crime to support the victim's statements. Physical evidence may appear in signs of a physical assault, such as bruising or injury, but this will not appear in every case. In cases involving threat of death or serious harm, there may be no signs of force.

Upon making a report of rape or sexual assault, law enforcement and medical providers will refer the victim to complete a rape kit at a local medical center. Specialized healthcare services for survivors of sexual assault exist in most communities today. They are often called Sexual Assault Nurse Examiner (SANE) treatment services.

In a SANE exam, the medical service provider:

  • Takes forensic samples to review DNA evidence present from the victim and the offender
  • Conducts a thorough physical exam, addressing any noted injuries and complaints
  • Documents the condition of the victim with detailed photographs and a narrative explanation of the assault

Specialized treatment can also provide prevention treatment for sexually transmitted diseases and other medical concerns. DNA evidence may not appear in every case. When it does, it can prevent a perpetrator from claiming there was no sex or that they were not present.

The vast majority of sexual assault offenders are someone known to the victim. Prosecutors can charge for rape when an offender and victim have a preexisting relationship, sometimes called date or acquaintance rape, or even when the offender is the victim's spouse.

In such cases, the victim may feel pressure to recant their statement or not follow through. This can be due to the relationship or the influence of family and friends. To address these concerns, victims and prosecutors can obtain "no contact" orders to protect the victim. They may also pursue charges for intimidation or witness tampering in appropriate cases.

What Is Statutory Rape?

The crime of statutory rape refers to sexual intercourse or other specified types of sexual contact with someone below that state's age of consent. Minors who are below the age of consent cannot legally consent to having sex. This means that an adult who has sexual contact with a minor violates the law regardless of whether the minor verbally agrees.

Statutory rape laws vary by state. States may set the age of consent differently. Many states punish statutory rape under laws addressing sexual assault, corruption of a minor, sexual battery, or carnal knowledge of a child. In more than half of the United States, statutory rape is a felony only if the adult participant is a set number of years older than the minor.

Some states, such as New Jersey, Georgia, and Indiana, have "close in age" laws. Under these laws, consensual sexual activity between individuals is legal if the two people are close in age, even if one of them is underage. Some states will not treat their sexual contact as a crime or may treat it as a misdemeanor instead.

Legal Defenses Against Rape Charges

One of the frequent defenses to a rape allegation is misidentification. For example, someone accused of rape may be able to provide a solid, verifiable alibi. This shows that they were in a different place when the crime occurred.

In some cases, a defendant may claim no sex occurred. This is a version of a false accusation defense. Such a defense may turn on the existence of any physical evidence of sex between the parties.

When the alleged offender and victim know each other, the offender often claims that the victim gave consent. Consent is by far the most common defense to crimes of sexual assault.

Most sex offenses, like most sexual encounters, occur in private locations. The only witnesses are the two people involved. The evidence may boil down to one person's word against another's. In a claim of date rape where both were drinking alcohol or using illegal drugs, consent or lack thereof may become difficult to prove.

Punishment and Other Consequences of Rape

Law enforcement agencies and criminal courts take sex crimes seriously. Any form of rape conviction generally results in a significant criminal penalty. It may include a lengthy prison sentence. The potential time will depend on state law.

A person convicted of rape or sexual assault must also register as a sex offender, sometimes for life. In some states, the government may seek civil commitment of an offender after their release from prison.

Get Professional Help With a Rape Case

Allegations of rape and sexual assault are serious. Navigating the criminal justice system can be challenging. If you are a victim of rape, consider talking to a victim advocate and learning your rights. You can find help through the National Sexual Assault Hotline at 800-656-HOPE (4673).

If you or someone you know stands accused of a sex crime, seek legal advice. An attorney can help you consider your defenses and fight to protect your legal rights. Contact a qualified criminal defense lawyer near you today to learn more.

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