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Aggravating Factors

Rape is a forced, unwanted sexual intercourse that can happen to men or women of any age.  It is also known as sexual assault.  A rapist applies force or violence or threatens the use of violence to take control over another human being.  Rape is a criminal offense whether it is committed by a stranger, an acquaintance, a lover, or a family member[i].

In the U.S., most states and the federal code have dropped the term rape and substituted it with a series of graded offenses such as aggravated sexual abuse, and abusive sexual contact.  The gradation of seriousness is similar to the gradations already present in statutes for other violent offenses.  The offense was differentiated by aggravating circumstances.  By replacing the single offense of rape with a series of graded offenses, it was predicted that it would be easier to obtain convictions through plea bargaining and by providing juries with the option of a lesser charge.  Most sexual assault statutes now focus on the force or threat of force made by the offender than on the consent factor of the victim.

An offense of rape will be considered grave when one or more of aggravating factors is present.  The sentence for aggravated sexual abuse will be substantially higher than that in a typical rape.  Aggravating factors that increase the gravity of the offense of sexual abuse include factors such as:

  • Violence is used over and above the force necessary to commit the rape,
  • A weapon is used to frighten or wound the victim,
  • The rape is repeated,
  • The rape has been carefully planned,
  • The offender has previous convictions for rape or other serious offences of a violent or sexual kind,
  • Victim is subjected to further sexual indignities or perversions[ii],
  • The victim is either very old or very young, or
  • The effect upon the victim, whether physical or mental, is of special seriousness.


The offense of rape consists of aggravating factors when it is committed by two or more offenders; when the offender is in a position of trust or confidence of the victim[iii]; there is an element of abduction along with the offense of rape[iv]; rape of a child or other vulnerable victim; rape aggravated by discrimination; repeated penetration in the course of a single attack; and rape by an offender with a life threatening sexually transmitted diseases.

The aggravating factors are considered before a verdict is provided in the case.  The jury has to consider whether the aggravating factors occurred immediately before, during or after the commission of the offence.  The jury is entitled to consider the entire sequence of events in making their determination on whether the aggravating acts occurred in the course of the rape, or whether, because of intervening time or events, the rape and the aggravating acts cannot be viewed as one continuous course of criminal conduct directed at the victim, and so can find the defendant guilty of two separate offenses, but not of aggravated rape[v].  The court would consider the facts before sentencing the accused such as 1). whether the offender inflicted serious personal violence on the victim; 2). the offender did an act likely seriously and substantially to degrade or humiliate the victim; 3). the offender was aided and abetted by another person present.

Aggravating factors also include matters such as:

  • the careful planning of the rape;
  • breaking into a house to commit rape knowing the presence of the victim alone inside the house;
  • covert use of a drug to overcome resistance or obliterate memory;
  • the presence of children when the rape is committed;
  • a history of sexual assaults or violence by the offender against the victim.

[i] In re Brandie W., 157 Cal. App. 3d 110 (Cal. App. 5th Dist. 1984).

[ii] Nixon v. Bradshaw, 2008 U.S. Dist. LEXIS 32563 (N.D. Ohio Apr. 18, 2008).

[iii] Miranda v. Subia, 2009 U.S. Dist. LEXIS 48359 (E.D. Cal. June 9, 2009).

[iv] Woomer v. Aiken, 856 F.2d 677 (4th Cir. S.C. 1988).

[v] Commonwealth v. McCourt, 438 Mass. 486 (Mass. 2003).

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