Rape and Statutory Rape

Rape is nonconsensual sexual intercourse; it's often committed through force, threats, or fear. One variation of rape, called statutory rape, makes it unlawful to have sex with a minor under the “age of consent,” which is usually between 16 and 18, even if the minor consents to the sex.

For detailed information about statutory rape, including state-specific laws, see Statutory Rape Laws and Penalties.

Legal Definition of Rape

For purposes of rape laws, sexual intercourse occurs at the moment of sexual penetration, however slight, by the male sexual organ. However, some states have expanded the definition of rape to include nonconsensual penetration by other body parts or objects; rape statutes may also prohibit unwanted fellatio, cunnilingus, and anal intercourse.

Perhaps the best known form of rape is forcible rape, which typically involves force or threats of violence to accomplish 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 where the rapist:

• prevents a victim from consenting by plying him or her with alcohol or drugs
• poses as a public official and threatens to arrest or deport the victim unless he or she agrees to sex, or
• acts with the knowledge that the victim has a disorder or disability that prevents him or her from legally consenting to sex.

Degrees of rape. Some states divide rape into degrees. First degree rape may consist of rape accompanied by severe physical injuries; it 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, the fact that the parties are married is irrelevant. Of course, the fact that an alleged rapist is the victim's husband may—depending on the facts—make it more difficult to establish that rape rather than consensual intercourse took place.

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 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." Though Fred hasn't acted roughly or threatened her, Amanda has heard that he 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 has sex with Fred.

Verdict: Fred isn't guilty of raping Amanda. Her subjective fear based on what she has heard about him doesn't invalidate her consent. (On the other hand, though, Amanda may have a valid civil claim against Fred and the company for workplace sexual harassment. (Learn more in 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, there have been dramatic shifts in rape-evidence law; these shifts favor alleged victims. First, rape-shield laws often prevent defendants from inquiring into rape victims' sexual histories, except under limited circumstances. (See Rape Shield Laws: Protecting Sex-Crime Victims.) Second, when it comes to sexual offense cases, most states have abandoned the general rule forbidding inquiry into defendants' past sexual crimes. When a defendant is charged with rape or another sexual offense, the prosecution can typically offer evidence of any past sexual offenses.

"Stranger Rape" vs. "Date Rape"

What some call "stranger rape" occurs when a previously unknown person attacks the victim. An example is an assailant violently dragging a passerby into a secluded spot and raping her. “Date rape” occurs when the rapist and the 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 sex by drugging her drink while the two are out on a date.

Reports indicate that date rape is far more common than stranger rape. But the ambiguities inherent in many social situations often make date rape more difficult to prove.

Get an Attorney

If you face criminal charges for rape or any other offense, consult an experienced criminal defense lawyer. An experienced attorney can fully explain the applicable law and analyze your case. Beyond advice and analysis, a knowledgeable lawyer is uniquely equipped to protect your interests.

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 Lawyer Directory with detailed information about each attorney. By using Nolo's directory, you can narrow down candidates before calling them for a phone or face-to-face interview.