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Rape Crimes Defined, Common Defenses and Rape Penalties

The crime of rape — often referred to as sexual assault —generally refers to non-consensual sexual acts that are either committed by physical force, threat of injury, or other duress, or committed against people who are legally or otherwise unable to consent.

The antiquated common law definition of rape was unlawful intercourse by a man against a woman who is not his wife, by force or threat, and against her will. However, most states have refined and broadened the statutory definition of rape so that marriage, gender, and force are no longer relevant; The victim's lack of consent is the crucial element. A lack of consent can include the victim's inability to provide consent (functionally or legally) due to age, mental disability, or even the effects of drugs or alcohol.

What Does Consent Mean in Rape/Sexual Assault Cases?

Consent can be expressed in several ways, and states often have different statutes (laws) defining what they consider to be legally valid consent and, conversely, what constitutes a non-consensual act. For example, Texas law lists many ways that an act can occur without consent:

  1. The actor compels the other person to submit or participate by the use of physical force, violence, or coercion.
  2. The actor compels the other person to submit or participate by threatening to use force or violence against the other person or to cause harm to the other person, and the other person believes that the actor has the present ability to execute the threat.
  3. The other person has not consented and the actor knows the other person is unconscious or physically unable to resist.
  4. The actor knows that, as a result of mental disease or defect, the other person is at the time of the sexual assault incapable either of appraising the nature of the act or of resisting it.
  5. The other person has not consented and the actor knows the other person is unaware that the sexual assault is occurring.
  6. The actor has intentionally impaired the other person's power to appraise or control the other person's conduct by administering any substance without the other person's knowledge.
  7. The actor compels the other person to submit or participate by threatening to use force or violence against any person, and the other person believes that the actor has the ability to execute the threat.
  8. The actor is a public servant who coerces the other person to submit or participate.
  9. The actor is a mental health services provider or a health care services provider who causes the other person, who is a patient or former patient of the actor, to submit or participate by exploiting the other person's emotional dependency on the actor.
  10. The actor is a clergyman who causes the other person to submit or participate by exploiting the other person's emotional dependency on the clergyman in the clergyman's professional character as spiritual adviser.
  11. 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 Chapter 2, Family Code.
  12. 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.
  13. The actor is a coach or tutor who causes the other person to submit or participate by using the actor's power or influence to exploit the other person's dependency on the actor.
  14. 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 the actor.

This list illustrates how many different ways the law can find that consent is impossible, often based upon the type of relationship between the offender in the victim.

Rape Laws in General

To convict an offender of rape, some form of nonconsensual sexual contact (often anal, oral, or vaginal penetration), however slight, must occur. Each different instance of penetration can also serve as an independent count of rape.

A particularly egregious form of rape is aggravated sexual assault, in which an offender uses violence or threats of violence to force a victim into sexual intercourse. In most states, however, rape can also occur with other forms of duress, such as blackmailing the victim.

Prosecutors can charge rape when an offender and victim have a preexisting relationship (sometimes called date rape), or even when the offender is the victim's spouse.

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

Statutory Rape Laws

The crime of statutory rape refers to sexual intercourse or other specified types of sexual contact with a minor (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 sexual contact with minors (by adults) violates the law regardless of whether the minor gives a signal of agreement.

Statutory rape laws vary by state, and states set the age of consent differently. Many states punish statutory rape under laws addressing sexual assault, corruption of a minor, or carnal knowledge of a child. In more than half of the United States, statutory rape is a felony only if one of the participants is at least several years older than the other.

Some states — New Jersey, Georgia, and Indiana, for example — have "Romeo and Juliet" 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 just as a misdemeanor. That being said, not all states have "close-in-age" laws.

Defenses to a Rape Charge

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

Consent is by far the most common defense to crimes of sexual assault; when the alleged offender and victim were personally acquainted beforehand, the most common defense is that the victim consented. In some instances, such as a date rape involving two individuals who had been drinking alcohol, the issue of consent can become murky and difficult to prove.

Penalties for Rape

Law enforcement agencies and criminal courts take sex crimes seriously. Any form of rape conviction generally results significant criminal charges, which can include a lengthy prison sentence, the specific duration of which will be based on state laws. In addition, a convicted rapist will normally be required to register as a sex offender for life.

Get Professional Help With Your Rape Case

Allegations of sexual assault are serious, and navigating the criminal justice system can be challenging. If you or someone you know has been accused with a sexual assault crime, contact a defense attorney who will help defend against the accusation and fight to protect your legal rights. Contact a qualified criminal defense lawyer near you today to learn more.

You Don’t Have To Solve This on Your Own – Get a Lawyer’s Help

Meeting with a lawyer can help you understand your options and how to best protect your rights. Visit our attorney directory to find a lawyer near you who can help.

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