Elements of Common-Law or Forcible Rape


Common-law or forcible rape is sexual intercourse against a person’s will.  Generally, the essential elements of a common-law or forcible rape are;

  • Sexual intercourse,
  • Force or threat, and
  • Lack of consent of the victim.

Acts amounting to sexual intercourse are held differently in different cases by the courts.  A slight penetration of the female sex organ is sufficient to amount to a sexual intercourse in certain jurisdictions.  A conviction for forcible rape may be granted even if there is no complete penetration or entry into a woman’s vaginal canal.  In the case of rape on young girls, rupture of hymen or tear of vagina is not necessary to convict a person for a crime of forcible rape.

It has been held that sexual intercourse included sexual contact between persons involving the sex organs of one person and the mouth or anus of another[i].  But, in certain states, penetration with a finger is not sufficient to constitute a penetration in order to convict on a charge of forcible rape.

Force is an essential element of a crime of forcible rape.  It can be physical force or constructive force.  In order to constitute force, putting physical restraints on a victim is sufficient in some jurisdictions.  Non resistance from the part of victim due to fear may be taken as evidence of force by some courts.  Threat of physical injury can be treated as force in an action on rape.  Serious physical injury is an element for the crime of rape in a first degree rape[ii]. Presence or absence of forceful compulsion is to be determined from the perspective of a rape victim.

Generally, the determination of forcible rape is based on the degree of force employed and the extent to which the victim resists.  In order to attract a conviction for forcible rape, force used must be more than that which is necessary for an act of sexual intercourse enabling the overcoming of a victim’s capacity to resist.  A person may not be convicted where the facts evidence that a victim did not offer physical resistance, and where there was no sufficient evidence of force to support a conviction[iii].  However it has also been held that requiring sufficient evidence to support force during rape was worthless because lack of resistance from victim was based on fear for her life, and belief that resistance would be useless[iv].

Various jurisdictions have held differently with regard to the necessity, manner, and extent of resistance by a victim.  In some jurisdictions, it is not necessary for a victim to physically resist unwanted sexual advances.  In a case where force is proved, the issue of whether a victim has consented or had a duty to resist is an issue for a trier of fact to determine.  If a woman is conscious and has natural mental and physical powers, she must resist to the extent of her ability, depending on the circumstances[v].  A person cannot allege lack of resistance if such person knows that resistance is not to be expected due to the victim’s physical disability.

Absence of consent is an essential element of forcible rape.  Generally, in order to sustain a conviction for rape a state need to prove only that a victim did not consent to the sexual intercourse.  Whether a victim consented or had a duty to resist is an issue to be determined considering the circumstances of a case by the trier of fact.  The test for consent under a statute is whether a victim understands the nature and consequences of the proposed act.  Forcible intercourse with an unconscious woman is considered to be without her consent and amounts to rape[vi].

The initial consent of a victim to sexual intercourse does not hinder a conviction of rape.  A victim may withdraw consent during an act of sexual intercourse, and if forced to complete the act against the victim’s will then forcible rape is said to be committed[vii].  Some other courts have observed that consent to sexual intercourse may be withdrawn at any time prior to penetration.

[i] State v. Brown, 78 Wn. App. 891 (Wash. Ct. App. 1995).

[ii] State v. Garnica, 2008 Wash. App. LEXIS 1530 (Wash. Ct. App. June 30, 2008).

[iii] United States v. King, 32 M.J. 558 (A.C.M.R. 1991).

[iv] United States v. Clark, 35 M.J. 432 (C.M.A. 1992).

[v] People v. Stuedemann, 156 Cal. App. 4th 1 (Cal. App. 4th Dist. 2007).

[vi] Brown v. State, 138 Ga. 814 (Ga. 1912).

[vii] In re John Z., 29 Cal. 4th 756 (Cal. 2003).