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Rape is the crime of sexual intercourse without the consent of the victim, often through force or threat of violence.  Rape can be heterosexual or homosexual.  The victims can be either a man or a woman.

Rape is not a continuous offense.  Each act of intercourse amounts to a distinct crime.  The state elects the act it relies upon for indictment of the defendant.  Conviction in the case where election of offences occurred would rest on a single act.  However, there should be a motion from the defendant to elect a single act of offense.  In cases where a child is sexually assaulted over a period of time, the state can elect upon which act of intercourse it would rely to prove that single offense.

In a prosecution for rape, the prosecutrix cannot be compelled to submit to a medical examination[i].  The right can be exercised only under the discretion of the trial court only in cases of extreme necessity and not subject to review on appeal. To corroborate the charge, physical examination of the prosecutrix can be called for by the court.  To make a victim go through psychiatric examination a defendant should provide a compelling reason.

The burden of proof is on the prosecution to establish criminal intent beyond doubt that the accused sexually assaulted the victim by force, coercion, or deception.  The prosecution has the burden to prove in a statutory rape that the victim was underage.  The state has to prove the lack of consent beyond reasonable doubt.  In cases where defendant claims impotency as a defense, the defendant has the burden to prove the incapacity by a preponderance of the evidence.  Where the defendant’s age is asserted as a defense to a charge of rape, the burden of proving the defendant’s age rests with the accused.  When the defendant pleads incapacity brought voluntary intoxication, the defendant has the burden of proving incapacity from such cause by a preponderance of the evidence.

The marital status and children of the accused is irrelevant to the case of rape[ii].  However, prosecution can show the marital status of an accused to provide proof of evil intentions of the accused who seduced the victim.  The mental incapacity of a victim to provide consent should also be proven.  The age of the prosecutrix should be proven by using documentary evidence such as family records, and school records.  Pregnancy evidence is properly admitted in a prosecution for statutory rape.  This is because evidence of pregnancy is proof of the element of sexual penetration[iii].  In a prosecution for statutory rape, the birth of a child is conclusively a prior act of unlawful intercourse.  It is permissible for the prosecution to exhibit the child to the jury to prove the commission of the crime[iv].  The physical and mental condition and conduct of a prosecutrix, are generally admissible in a rape prosecution[v].  Evidence of venereal disease is also admissible in a prosecution for rape.

The credibility of a prosecutrix can be questioned by testimony related to the prior conduct of the prosecutrix.  Chastity of the prosecutrix is not a defense.  However, unchastity can be used to prove the general credibility of the victim.  The testimony as to previous false charges is also admissible in a prosecution for rape.

The general principle is that the age of consent does not render a girl under that age incapable of committing a sexual crime.  A victim who is under age need not answer questions in court that would incriminate her.

The defense of entrapment is not available in a case for an assault with intention to commit rape[vi].  Double jeopardy is a defense in a crime of rape.  Impotency can be considered a good defense in a criminal prosecution for rape.  Where a person is charged with the crime of rape, evidence of his physical capacity to accomplish the act is admissible as a defense.  Generally, persons over the age of 14 years, or over the age set by statute, are presumed to be physically capable of committing the crime of rape[vii].  However, it is a rebuttable presumption.  Voluntary intoxication is not considered a valid defense to the charge of rape[viii].  However, voluntary intoxication can be a defense to the crime of rape only when it produces a mental condition of insanity[ix].  If a victim is mentally incapable of consenting to sexual intercourse, and a forced sexual assault has happened it would amount to a crime of rape[x].  If the offender had no knowledge o the mental state of the victim, it can be a defense in the case[xi].  Generally, females under a certain age are incapable of consenting to an act of sexual intercourse[xii].  The consent of a woman below the statutory age limit is not a defense in a prosecution for rape because it is considered irrelevant.  If the lack of consent was expressed clearly, the defendant’s pleading that there was a belief of consent will not hold.  Mistake of age is not a valid defense[xiii].  In many states, marital exemption immunizing a husband from raping a wife is now abrogated.  However, in some states, it is still a good defense that the defendant is the husband of the prosecutrix.  Subsequent marriage of the offender to the victim is not a defense in the crime of rape[xiv].

Generally, when an indictment charges an offense that includes within it another offense or one of a lower degree, the defendant can be convicted of the lesser offense.  A verdict of guilty on a count charging rape has been upheld despite the fact that the defendant was acquitted as to other counts charging the person with rape or other crimes.

Various states prescribe punishments for rape, statutory rape, assault with intent to commit rape, and attempt to rape.  To discourage gang type assaults, punishment is provided by certain statutory provisions for rape in concert with another.  Sentences for conviction for rape are the death penalty, life imprisonment, 99 years imprisonment, 40 years’ imprisonment, or sentences of 30 to 50 years, 20 to 40 years, or 25 to 30 years in the penitentiary.  Under federal law, a person who during the commission of a sexual assault engages in conduct that results in a person’s death can be punished by death or imprisoned for any term of years or for life.  Death or imprisonment can be provided for a person who is convicted of rape or child molestation resulting in death.  Appellate courts can reduce sentences imposed in rape cases.

[i] Self v. State, 62 Okla. Crim. 208 (Okla. Crim. App. 1937).

[ii] Hastings v. State, 119 Tex. Crim. 507 (Tex. Crim. App. 1931).

[iii] State v. Boyd, 331 N.W.2d 480 (Minn. 1983).

[iv] State v. Henderson, 19 Idaho 524 (Idaho 1911).

[v] Loving v. Commonwealth, 165 Va. 761 (Va. 1935).

[vi] State v. Coleman, 270 N.C. 357 (N.C. 1967).

[vii] Chism v. State, 42 Fla. 232 (Fla. 1900).

[viii] Witherspoon v. State, 671 S.W.2d 143 (Tex. App. Houston 1st Dist. 1984).

[ix] Frank v. State, 6 Md. App. 332 (Md. Ct. Spec. App. 1969).

[x] State v. Fox, 72 S.D. 119 (S.D. 1948).

[xi] Morrow v. State, 13 Ga. App. 189 (Ga. Ct. App. 1913).

[xii] State v. Sayre, 183 W. Va. 376 (W. Va. 1990).

[xiii] State v. Anthony, 133 N.C. App. 573 (N.C. Ct. App. 1999).

[xiv] In re Lewis, 67 Kan. 562 (Kan. 1903).


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