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Rape is the crime of forcing another person to submit to sex acts, especially sexual intercourse.  The term rape is not mostly used in the U.S.  It is also known as sexual assault.

Many defenses can be pleaded by an offender in the courts when they are accused of the offense of sexual assault.

In a case for an assault with intention to commit rape, the defense of entrapment is not available[i].  The defense pf entrapment is available to a person who is induced to commit a crime that the person did not contemplate.  However, sexual assault is a crime in which a person can be caught in a trap in the execution of a crime of one’s own conception.

Double jeopardy is a defense to the crime of rape.  A conviction of an attempt to commit rape, or a conviction or acquittal of an assault with intent to commit rape, will be a bar to a subsequent prosecution for rape[ii].  When a person is under a charge of assault and battery, the person cannot be subsequently prosecuted for an assault with intent to rape based on the same act.  However, a conviction in an inferior court on a charge of assault and battery will not constitute double jeopardy for rape or for assault with intent to commit rape.  The double jeopardy clause is not violated when rape is considered as part of the crime of kidnapping and as a crime in itself. Therefore, convicting a defendant of both forcible rape and second-degree kidnapping does not violate the double jeopardy prohibition[iii].

Impotency can be considered as 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.  However, evidence can show that a slight penetration occurred, even though a defendant was impotent and had no erection at time of act[iv].  In some states, the presumption is that boys under 14 years old are physically incapable of committing the crime of rape or assault to commit rape.   However, if there is proof that the infant has arrived at puberty the defense can be rebutted.

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[v].  However, this presumption is rebuttable.  The burden of proof to rebut the presumption is on the defendant who can introduce evidence regarding his physical capacity to accomplish the offense.  In the case of persons 14 years old or older, impotency is no defense to a charge of assault with intent to commit rape.  However, evidence of impotency will be admissible on the issue of intent.

The physical inability of a person who is over age is not a defense to the charge of rape or attempted rape.  If the person has performed any overt act toward accomplishment of that purpose there can be no defense[vi].

Voluntary intoxication is not considered a valid defense to the charge of rape, or an assault with intent to commit rape in the U.S[vii].  Intoxication does not render a person incapable of doing an act according to his/her intention.  However, voluntary intoxication can be a defense to the crime of rape only when it produces a mental condition of insanity[viii].

If a victim is mentally incapable of consenting to a sexual intercourse, and a forced sexual assault has happened it would amount to a crime of rape[ix].  In some states, the absence of knowledge of the offender about the mental capacity of a victim will be taken into consideration before convicting the offender.  If the offender had no knowledge about the mental state of the victim, it can be a defense in the case[x].  However, in some other states, lack of knowledge of the defendant about the mental incapability to give consent of the victim will not constitute a defense.  If a statute requires a person to act knowingly, and recklessly to constitute an offense of sexual assault, the prosecution has the liability to prove the negligence of the accused who acted recklessly not considering the mental capacity of the victim.

In many states, statutes provide that a female under a certain age is incapable of consenting to an act of sexual intercourse[xi].  The consent of a woman below the statutory age limit is not a defense in a prosecution for rape because it is considered irrelevant.  However, if the offender was under the belief that the female was capable of giving consent, then it would amount to a valid defense.  The defendant should prove that the mistaken belief was under bonafide circumstances.  The belief of a defendant that the victim has provided consent should also be proved.  The belief of consent provided should be reasonable to constitute a defense[xii].  If the lack of consent was expressed clearly, the defendant’s pleading that there was a belief of consent will not hold.  The foundation for the reasonable belief in consent defense is evidence from which the jury could conclude the defendant acted under a mistake of fact that created a reasonable belief the victim consented to the charged acts.  In some states, mistake of age is not a valid defense[xiii].

Marital exemption immunizing a husband from raping a wife is now abrogated in many states.  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].

Unchastity of a victim is not a defense to the prosecution of rape.  However, the credibility of the prosecutrix can be attacked because of a reason of unchastity.

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

[ii] Territory v. Silva, 27 Haw. 270 (Haw. 1923).

[iii] Graham v. Commonwealth, 250 Va. 487 (Va. 1995).

[iv] State v. Tafoya, 2010 NMCA 10 (N.M. Ct. App. 2009).

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

[vi] Hall v. State, 40 Neb. 320 (Neb. 1894).

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

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

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

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

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

[xii] People v. Burnham, 176 Cal. App. 3d 1134 (Cal. App. 5th Dist. 1986).

[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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