Assault with intent to commit rape is a non-consensual sexual offense that includes every essential element of rape, except consummation of the sexual act or penetration[i]. Elements that constitute the offense of assault with intent to commit rape are different from that of rape and attempt to rape.
Elements that constitute an offense of assault with intent to commit rape include[ii]:
- assault; and
- specific intent to commit rape.
An assault is one of the essential elements of the offense of assault with intent to rape. The mere existence of specific intent without assault is insufficient. Words expressing the intention will not alone constitute assault with intent to rape[iii]. Actual touching of the woman’s person or actual injury is also not necessary to complete an assault[iv].
Specific intention to commit the assault must exist with the action of assault to punish the defendant for the crime of assault with intent to commit rape. Therefore, mere touching to awaken a sleeping woman for soliciting sexual intercourse is not an assault with intent to commit rape.
Both these elements must coexist to constitute the crime of assault to commit rape. Assault with intent to commit rape is a form of attempted rape, because there must be an attempt to commit rape in order to constitute the crime[v]. In an assault with intent to commit rape the intention to commit rape should be manifested by an assault upon the victim[vi].
In order to convict a defendant for an offense of assault with intent to commit rape, the prosecution must prove the following[vii]:
- that there was an attempt to have sexual intercourse with the victim;
- that it was against the will of the victim; and
- that there was a use of force.
Generally, a man who commits an overt act will be convicted for an assault with intent to rape, if the victim is under the age of consent and has expressed their willingness to such overt act. The reason being that a child cannot consent to the crime of rape or to an assault with the intent to commit rape[viii].
[i] Cape v. State, 61 Okla. Crim. 173 (Okla. Crim. App. 1937).
[ii] People v. Lipski, 328 Mich. 194 (Mich. 1950).
[iii] Holliman v. Lucas, 202 Miss. 463 (Miss. 1947).
[iv] Jackson v. State, 91 Ga. 322 (Ga. 1893).
[v] State v. Garten, 131 W. Va. 641 (W. Va. 1948).
[vi] State v. Hennessy, 73 Mont. 20 (Mont. 1925).
[vii] State v. Whittinghill, 109 Utah 48 (Utah 1945).
[viii] State v. Wilson, 162 S.C. 413 (S.C. 1931).