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Elements of Statutory Rape

The elements of the offense of statutory rape are[i]:

  • Sexual intercourse,
  • with a child under the age of consent.


There must have been a sexual intercourse between a person and a girl, whose age as stipulated by a rape statute is not one to give consent for sexual intercourse.  Sexual intercourse must be to the extent of actual penetration and it must be proven with clear evidence[ii].

A state has to prove only that, a victim was below the statutory age at the time of rape.  When it is proved that a girl is of young age, lack of consent need not be proved.  A state may then prove the fact of sexual intercourse by adducing clear evidence.  All other factors related to a rape are not essential elements of a statutory rape.  Lack of consent is not an essential element of statutory rape because the law itself provides that a child cannot give consent to rape[iii].  The elements of statutory rape do not include force and assault.

Age is the essential element in a statutory rape and intent and motive play only little, if any, part in the offense[iv].  Mistake concerning a victim’s age is not a valid defense and will not be considered by a court[v].  A person cannot take consent as a defense because statutory rape is a crime in which absence or presence of consent is irrelevant. 

Whether a girl was chaste before the rape will be considered immaterial unless any statute requires it to be so.  A rape statute is applicable to any female who is below the statutory age[vi].  The fact that she is married does not mean that she can be subjected to illegal sexual intercourse.  Certain state statutes with regard to sexual abuse give protection to male children also.  A woman may be prosecuted if they engage in sexual relations with underage male[vii].

Rape statutes in different states fix the age of consent differently.  Age has been fixed as varying from 10 to 18 years[viii].  Generally, physical development of a child is not referred to in the statutes.  In some jurisdictions, capital rape requires the rape of a child under age 14, while statutory rape requires sexual intercourse with an unmarried person between 14 and 18 years of age who was chaste character younger than himself/herself.

[i] United States v. Wiley, 492 F.2d 547 (D.C. Cir. 1973).

[ii] Martinez v. People, 160 Colo. 534 (Colo. 1966).

[iii] Ganzhi v. Holder, 2010 U.S. App. LEXIS 9587 (2d Cir. May 11, 2010).

[iv] State v. Ybarra, 386 S.W.2d 384 (Mo. 1965).

[v] State v. Stokely, 842 S.W.2d 77 (Mo. 1992).

[vi] M. v. Superior Court of Sonoma County, 25 Cal. 3d 608 (Cal. 1979).

[vii] Id.

[viii] State v. Barnette, 158 Me. 117 (Me. 1962).

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