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Common-Law or Forcible Rape

Common-law or forcible rape refers to sexual intercourse against one’s will or consent.  It may be committed by force or threat of force or injury to a person.  A person committing forcible rape may be found guilty of two types of forcible rape.  They are:

  • first-degree rape; and
  • second-degree rape


Commission of rape by forcible compulsion and inflicting serious physical injury together constitutes rape of first degree.  A person committing forcible rape without inflicting any serious physical injury will be guilty of second degree rape.

Rape by force or threat is made a crime under the U.S. Federal statute[i].  It states that whoever knowingly causes another person to engage in a sexual act or attempt to do so; by using force against that other person shall be fined or imprisoned for any term of years or life, or both.  Same punishment is provided in the statute if forcible rape is committed or attempted by threatening or placing that other person in fear that any person will be subjected to death or serious bodily injury or kidnapping.

Aggravated sexual abuse by any other means other than force or threat is punishable with fine or imprisonment for any term or life or both[ii].  This punishment would be given to anyone who knowingly;

  • make another person unconscious and engages in a sexual act with that person; or
  • administer to another person a drug or intoxicant by force or threat of force, or without the knowledge or permission of that person and thereby impairs the ability of that other person to control conduct; and engages in a sexual act with that other person.


Multiple penetrations of different openings in the body with different objects constitute deliberate cruelty.  Penetrations with a sharp object are cruel beyond the act of rape and constitute physical injury[iii].

Common-law rape or forcible rape is different from a rape commonly called as statutory rape.  Statutory rape is referred to sexual intercourse with a girl under the age of consent.

A person may be charged for forcible rape where such person compelled or mislead a victim and engaged in sexual intercourse.  Also, a person may be guilty of forcible rape where such person had knowledge that a victim was mentally or physically capable of opposing the act.

Common-law rape may also include acts of forcible unnatural sexual intercourse that may include acts of oral sex.  A person who commits such acts may be guilty of second degree rape[iv].  Rape is not a specific intent crime at common law.  Therefore proof of mental state is not required for a conviction of rape.[v].

[i] 18 USCS § 2241 (a).

[ii] 18 USCS § 2241 (b).

[iii] State v. Dull, 2004 Wash. App. LEXIS 471 (Wash. Ct. App. Mar. 22, 2004).

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

[v] Id.

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