Rape is a form of sexual assault. Sexual assault is an assault of a sexual nature on another person. Under criminal law rape is defined as forcible sexual relations with a person against that person’s will. “To the lay person, rape is generally construed to mean total consummation of the act of sexual intercourse, committed forcibly and with complete penetration”[i].
Rape is considered a crime against humanity and a war crime. Perpetrators of rape include: strangers, acquaintances, neighbors, superiors, legal entities or family members. Victim of a rape can be men or women. A woman can be convicted of raping a man, a man can be convicted of raping a man, and a woman can be convicted of raping another woman. Female abusers are usually seen as less culpable than male rapists by the courts.
The U. S. Code[ii] described the crime of rape under a more comprehensive term sexual abuse. Two types of sexual assault are defined in the code:
- sexual abuse; and
- aggravated sexual abuse.
Sexual abuse occurs when an individual is forced to engage in sexual activity by use of threats, other fear tactics, or instances in which an individual is physically unable to decline. Aggravated sexual abuse occurs when an individual is forced to submit to sexual acts by use of physical force, threats of death injury, kidnapping, or substances rendering an individual unconscious or impaired. Aggravated sexual abuse includes three types:
- A person who knowingly causes another person to engage in a sexual act by using force against that other person, threatening or placing that other person in fear that any person will be subjected to death, serious bodily injury, kidnapping or attempts to do so, shall be fined and imprisoned for any term of years or life, or both.
- A person who knowingly renders another person unconscious and thereby engages in a sexual act with that other person; administers to another person by force or threat of force or without the knowledge or permission of that person a drug, intoxicant, or other similar substance; thereby substantially impairs the ability of that other person to appraise or control conduct; and then engages in a sexual act with that other person or attempts to do so, shall be fined and imprisoned for any term of years or life, or both
- A person knowingly engages in a sexual act with another person who has not attained the age of twelve years, or knowingly engages in a sexual act with another person who has attained the age of twelve years but has not attained the age of sixteen years (and is at least four years younger than the person so engaging), or attempts to do so, shall be fined and imprisoned for not less than 30 years or for life[iii].
Rape laws in the U. S . vary from state to state. Most states choose to label the crime of rape as sexual assault. All states define rape without reference to the sex of the victim and the perpetrator. In some jurisdictions the term used is criminal sexual conduct and in some other rape is defined as sexual penetration.
Generally, the offense of rape is:
- forced sexual intercourse;
- sexual intercourse against the victim’s will and without his/ her consent;
- sexual intercourse when the victim is mentally or physically incapacitated; and
- sexual intercourse when the victim is under the age of consent
The absence of consent to sexual intercourse on the part of the victim is essential to constitute the offense of rape. Consent need not be expressed. Consent can be implied from the context and from the relationship of the parties. However, absence of objection does not of itself constitute consent. Moreover, duress leads to the presumption of lack of consent. When a victim lacks an actual capacity to give consent, valid consent is lacking. A child; and a person who has mental impairment, or development disability cannot give consent.
Sexual intercourse with a person below the age at which s/he cannot legally consent to such relations is known as statutory rape. Other types of rapes include: date rape, gang rape, marital rape, prison rape, acquaintance rape and war rape. The victim does not have to be penetrated to be raped. The perpetrator can use objects to stimulate the genitals. Moreover, rape is not always done for sexual satisfaction of the perpetrator. Other motives for rape include; blackmail, punishment, curiosity, money, and power.
Majority of rapes are committed by persons known to the victim. The initiation and process of a rape investigation depends the victim’s willingness and ability to report and describe a rape. The legal requirements for reporting rape vary by jurisdiction.
In the U.S., rape is often called criminal sexual conduct in the first degree. First degree rape, the elements of which include engaging in sexual intercourse with a person by forcible compulsion and using or threatening to use a deadly weapon. The elements of second degree rape include sexual intercourse with another by forcible compulsion. Second degree rape, does not require the State to prove the use or threatened use of a deadly weapon[iv].
[i] Perez-Amaya v. Commonwealth, 2006 Va. App. LEXIS 569 (Va. Ct. App. Dec. 19, 2006).
[ii] 18 USCS § 2241.
[iv] State v. Brown, 127 Wn.2d 749, 754 (Wash. 1995).