This committee should also oversee the collection of blood samples for the population studies, and advise the courts on statistical questions as well. The committee would be composed of molecular geneticists, population geneticists, ethicists and lawyers. It would be housed in the National Institutes of Health or the National Institute of Standards and Technology, with support from the National Institute of Justice and the National Science Foundation.

The acceptance of DNA fingerprinting is going through the same type of debate that ink fingerprinting went through, with questions about whether more than one person could have the same print, whether there could be abuse by police, and the methods of taking samples. Considering all factors of DNA fingerprinting that have been presented in the courtroom, it does appear that the widespread acceptance of DNA testing in court is close to realization. However, it remains to be been what standards will be placed on the testing procedures and the labs performing the tests.

In a report issued by the National Academy of Sciences (NAS), the committee came out strongly in favor or mandatory accreditation of DNA typing labs and mandatory proficiency testing. The problem is that this new technology came to the forefront so rapidly that there are essentially no standards and no regulations. This is especially disturbing since the largest potential source or error lies in poor laboratory practice. The group urges Congress to adopt legislation requiring accreditation of all DNA typing labs and recommends that the courts allow DNA evidence to be admitted only if the laboratory has been accredited. They delegate the task of setting up the program to the Department of Health and Human Services in consultation with the Department of Justice.

At least 15 men have been freed after serving time when comparisons of their DNA failed to match evidence gathered at crime scenes. If even one out of 1,000 wrongly convicted justly goes free, the costs would be substantiated. The ink fingerprint had to pass the test. So will the genetic fingerprint. Why not perfect the technique and gauge the judicial system’s acceptance of DNA fingerprinting by freeing the innocent while attorney and scientist battle it out in court?

DNA fingerprinting, like ink fingerprinting, must go through various levels of acceptance and testing to determine its true usefulness. This process, if taken through the already over-crowded courts, will undoubtedly take years to perfect. Therefore, it is important to realize that while these battles wage onward and as DNA fingerprinting does gain the acceptance of the criminal justice system, it is to the advantage of that same system to use the conclusive science as a means to exonerate those wrongly convicted.

In a few years, it will be apparent that DNA fingerprinting is a major player in the evidence arena. It is evident now that there will seldom be a rape or murder trial brought into a courtroom without the most advanced forensic evidence – DNA fingerprinting. But is it fair for an innocent man to spend even one more day in prison when the means for his freedom exists, but is not made easily available because the debate of its accuracy wages on in court?

The results for the innocent man would be conclusive. There is no need for scientific evaluation or questions about the admissibility of the evidence in a court. DNA fingerprinting as a means of exonerating those wrongly convicted is an accurate, more reliable science than the statistical probabilities that must be accounted for in a conviction based on DNA evidence. Therefore, while scientists perfect the testing methods, the government establishes standards and the courts decide upon admissibility standards for DNA fingerprinting, the technology should be used more for the exoneration of those wrongly convicted instead of a means for attorneys to impress a jury with scientific hocus-pocus. One of the most compelling reasons for introducing more vigorous DNA laws is to confirm its role in strengthening child molestation laws.

Child pornography is defined as any visual depiction of sexually explicit conduct involving children under the age of 18. Both federal and state laws make it illegal to possess, distribute, manufacture, or sell materials that exploit minors, and the laws relating to child pornography have become progressively more severe in recent years.

Sexually explicit material is defined by the FBI to include any photograph, movie, videotape, print, negative, slide, or other mechanically, electronically, chemically, or digitally reproduced visual material that depicts a child engaged in, participating in, observing, or being used for explicit sexual conduct. They also note that computer and electronic communication has become the techniques of choice that is used by pedophiles to share illegal photographic images of minors and to lure children into illicit sexual relationships.

The Internet has made it easier for offenders to obtain the materials and share their interest with others who endorse this type of sexual preference. There is no free speech or First Amendment protection for child pornography. In other words pornographic pictures of children are not constitutionally protected speech. Pornographic pictures are criminal evidence of the sexual exploitation of children.

People who are charged with child pornography crimes are usually caught by the use of undercover sting operations in which law enforcement poses as someone interested in child pornography, or as a minor willing to be lured by the offender. Internet service providers are required to report suspected child pornography sites or users. Tips from anonymous sources to tip lines are another source for law enforcement. Just because someone deletes emails or pictures from their computer does not mean that they disappear. A good computer tech can track down and restore such documents.

Penalties vary from state to state and can be quite severe. On the state level penalties range from five years in state prison for possession of child pornography for a first time offender to a minimum of fifteen years for distribution. Subsequent convictions will dramatically increase the sentence length as will sentence enhancements and strike laws; up to and including life imprisonment. The federal government often becomes involved because of the tendency of the crime to cross state lines. Federal sentences range from five to fifteen years for a first offense, fifteen to forty years for a second offense and then thirty five years to life imprisonment for additional offenses. All convicted offenders must register for life as a sex offender.

Defending a charge of possession, distribution or manufacturing child pornography is extremely difficult but not impossible. This is important because the use of the internet makes it easier to become unintentionally involved in child pornography. Many people download prohibited images without knowing what they contain and are then charged even though they had no intention of becoming involved with child pornography. It is easy to misinterpret a person’s age or intentions when chatting and browsing the web.

There are several potential defenses that could lead to an acquittal or not guilty verdict. All approaches involve what is known as an affirmative defense. An affirmative defense shifts the burden of proof from the prosecution to the defendant (affirmative defenses are most notable in the “insanity” defense). If you are convicted, you will be required to register as a sex offender. The sex offender database can be legally accessed by anyone except for convicted sex offenders.

The second defense, is that the defendant possessed less than three visual depictions and promptly and in good faith without keeping or allowing anyone else, other than a law enforcement agency to access any visual depiction and took reasonable steps to destroy each visual depiction or reported the matter to a law enforcement agency and allowed that agency access to each such visual depiction. Finally, if the defendant can show that the pictures were only seemingly child pornography; for example an eighteen year old dressed up as a child, but that no minors were actually involved then there was no actual crime committed it can be a child pornography defense (assuming no other obscenity laws were violated – see the case of Max Harcore AKA Paul Little for a good example of this issue being handled in a courtroom).

According to U.S. Department Justice, child molestation is a broadly defined term which includes: contacts or interactions including inappropriate physical contact between a child and an adult when the child is being used for sexual stimulation of the perpetrator or another person when the perpetrator or another person is in a position of power or control over the victim. Sexual Molestation is  a term defining offenses in which an adult engage in non-penetrative activity with a minor for the purpose of sexual gratification; for example, exposing a minor to pornography or to the sexual acts of others.

The definition of a minor varies from state to state; with states such as Arkansas allowing for consent at age fourteen and California which allows for consent at the age of eighteen. Consent is not a matter of consideration, and is not available as a defense to a charge of child molestation because federal and state laws do not recognize a child capable of issuing consent for any sexual acts.

Molestation of a minor is a felony punishable by the minimum sentence of two years in prison for first time offenders for child molestation: to the death penalty in some states for anyone convicted of a second or subsequent conviction of molestation involving a child less than fourteen years of age. A sentence enhancement including use of a fire arm, or a strike offense can lead to longer sentences. Five of fifty U.S. states can seek the death penalty for repeat offenders. If you are convicted, you will be required to register as a sex offender for life. The sex offender database can be legally accessed by anyone except for convicted sex offenders. Convicted child molesters that serve time in prison face greater peril than any other type of offender; they are considered by other inmates as being the “lowest of the low” and fair game for attacks against them. Convicted child molesters are often housed in protective custody for their own well being.

There are laws to enforce mandated reporting which requires persons that work in professions such as education, social service, medical professionals and any type of social work. They are required to file a report of any suspected abuse. The usual confidentiality afforded to therapist and their patients does not apply to child molestation.

There are several related child molestation laws on a national level, but the federal government does not usually get involved unless the crimes occur under federal jurisdiction, such as interstate transportation. If that is the case, the federal government of the will enhance child molestation laws to include charges such as transportation of a minor, soliciting and possibly kidnapping. Most of the laws concerning child molestation laws put enforcement in the states’ hands which is why the wording of the law and the penalties vary so much.

Allegations of child molestation are the easiest crime to accuse and the hardest to defend. The general public including juries is prone to automatically believe the allegation of a child. This can result in a situation where anyone accused of a sexual offense against a child is for all practical purposes presumed guilty. It is a difficult charge to defend but with qualified counsel it can be done. The most publicized defenses are affirmative defenses. An affirmative defense shifts the burden of proof from the prosecution to the defendant and includes mental disease or defect, intoxication and immaturity as well as affirmative belief that the minor misrepresented them to the defendant. The prosecutor knows only what the police or social workers have stated in their reports. Child molestation defenses are similar to child pornography defenses.  Under child molestation laws if the defendant can show that the minor represented themselves to be reasonably believed as an adult by showing documentation that appears to be legal for the purpose of validating a minors age, they may obtain an acquittal , but this is by no means certain, and one should never rely on documentation of proof of age as a license to commit crime.

The largest concern for law enforcement agencies is the staggering number of internet crimes that are perpetrated against minors. The FBI estimates that in the U.S. one in seven children have been contacted through the internet with sexually explicit material. Predators use the internet to collect child pornography, to chat with children, to lure children and to meet up with other predators. Most perpetrators are caught using sting operations that often include many agencies.

Law enforcement monitors chat rooms, web sites and person to person websites such as MySpace. If criminal activity is suspected then a decoy will be set to either lure the perpetrator “out” or gather data to arrest anyone that may be involved. Most web service providers including MySpace are very cooperative in helping law enforcement. In the United States internet crimes involving a minor are punishable on both the state and federal level. Possession of child pornography is a felony and requires that if convicted, the perpetrator register as a sex offender for life. It falls under the broad category of sexual exploitation of children and is punishable by 5 to 20 years in prison for a first offense 15 to 40 years for a second offense and 35 years to life for additional offenses.

Solicitation crimes such as prostitution and pandering have become more widespread in cyberspace. Often these ads or websites list themselves as escorts. Typing the word “escort” into a search engine will return over thirty million hits. Searching online personals will also result in a number “escort” ads. A legitimate escort service is legal, however, prostitution is not. Pimping and pandering occur when individuals seek out potential sex workers by recruiting using websites such as MySpace or Craigslist. Undercover officers search internet site for these ads, contact the suspect and a arrange meeting. Arrests are made once the suspect agreed to exchange sex acts for money. The federal government typically gets involved when they discover an interstate “ring”. The current penalties for online solicitation for sexual services are about the same as it is for traditional charges. Prostitution is typically a misdemeanor which is less than one year in the county jail, a fine or both. Pimping and pandering are felonies and sentences vary in length from one to six years in state prison for the first offense and longer sentences for repeat offenses.

The amount of pornographic material available on the internet is staggering, you may have to pay for it at some sites or you can watch as many free home movies as you would like at free sites. The idea of legislating pornography is difficult as it walks a fine line with the First Amendment and free speech rights. Internet pornographic material is not illegal as a watcher or a provider unless a minor is involved. Possessing or offering material that is deemed “obscene” is a crime. In 1964, Justice Potter Stewart tried to explain “hard-core” pornography, or what is obscene, by saying, “I shall not today attempt further to define the kinds of material I understand to be (pornographic / obscene) . . . but I know it when I see it. For something to be “obscene” it must be shown that the average person viewing the material would find that the work depicts or describes sexual conduct in a blatantly offensive way, and that it does not have literary, artistic, political or scientific value. Publishing obscene material online is a federal crime and carries a penalty of not more than five years in prison or a fine or both. This does not include any acts with a minor.

Someone arrested for an internet sex crime will potentially have a difficult time defending the crime. The fact that the crime was committed over the internet is what makes it hard to defend. Internet sex crimes tend to leave an electronic trail. Just because something is deleted from a computer does not make it disappear. Aside from taking your computer apart and smashing the components to bits the information will still be there. A reasonably skilled computer tech can track deleted information. Law enforcement keeps track of emails, messages, websites and other information to make sure that they have a trail before an arrest. Internet providers and website administrators often cooperate with law enforcement when crimes are committed and can provide tracking information.

In internet sex crimes, potential defenses might include entrapment i.e., the information was not solicited by the defendant. Another possible defense could be a First Amendment defense to argue what is obscene and or free speech and freedom of the press. Finally if a minor is involved, reasonable misrepresentation of age by an individual or the information provider may make an argument in the defendant’s favor.

Depending on circumstances specific to the case, sex with a minor can result in a variety of charges including statutory rape, molestation /sexual assault and incest . The U. S. Justice Department reports the alarming statistic that one in four girls and one in seven boys will experience sexual abuse before the age of 18.

Penalties for sex crimes involving a minor vary from state to state. The federal government becomes involved when interstate transportation is involved or if the crime occurs on federal property. All convictions require that the offender register as a sex offender.

Statutory rape occurs when the victim consents to sexual relations with another but is not of legal age to do so. The legal age of consent varies state to state. The average age is approximately 16 years of age, with some states restricting consent to 18 and some allowing as young as 14. Age differences between the parties can have an impact on the penalties imposed upon conviction. Penalties vary from state to state, in California up to 1 year in the county jail (a misdemeanor) or up to life imprisonment in Montana. All states currently have sex offender registration laws and the Federal government requires that a person must register if they are convicted of felony rape charges.

Incest between a child or adolescent and a related adult has been identified as the most widespread form of child sexual abuse with a huge capacity for damage to a child because of the relationship of the victims and the expectation that the victim should be protected by relatives. Incest is a felony and sentences range from a minimum sentence of two years in prison to a maximum of live imprisonment without parole.

Child molestation is acts in which an adult engages sexual activity with a minor that does not involve penetration but the intent is still sexual gratification for the adult. Some example of this would include fondling, flashing and making a child view sexual acts or pornography. Sexual assault refers to offenses in which an adult touches a minor for the purpose of sexual gratification; for example, rape (including sodomy), and sexual penetration with an object. Most U.S. states include, in their definitions of sexual assault, any type of penetration of a minor’s body, however slight, if the contact is performed for the purpose of sexual gratification. Both molestation and sexual assault of a minor is a felony punishable by the minimum sentence of two years in prison for first time offenders for child molestation, to the death penalty in some states for anyone convicted of a second or subsequent conviction for rape, sodomy or lewd molestation involving a child under 14.

Typically law enforcement becomes aware of these crimes because the victim tells a family member or friend or as a result of a report made by a mandated reporter. The law in the U.S. requires that all child sexual abuse be reported to the proper authorities. Mandated reporters are persons that work in professions such as education, social service, medical professionals and any type of social work. They are required to file a report of any suspected abuse. The usual confidentiality afforded to therapist and their patients does not apply to confessions of sex with a minor.

Defending a charge of sex with a minor is very difficult. In case of statutory rape, one could argue that the victim presented themselves as being of legal age to give consent. For other crimes associated with sex with a minor there have been cases of false allegations. These usually occur when parents are fighting over custody issues or in rare cases when a new parent enters the household and the minor does not get along with that person. People, including juries tend to err on the side of caution and this result in many convictions.

When DNA crime evidence is strong, prosecutors can attest that only one person out of as many as a billion is likely to have DNA matching that found at the crime scene.  This can make a persuasive case when combined with other evidence.  But are those odds correct?  Scientists said in the 1980s that the odds of two people having the same DNA profile were about 9 billion-to-1.  Today, the odds vary, depending on the expert.

Ronald Goodbread, a Washington, D.C. defense lawyer, says he’s heard experts cite probabilities ranging from 184 billion-to-1 to 3,000-to-1.  Because the figures are still disputed, Goodbread says the test is a questionable means of proving guilt beyond a doubt.  “Show me a system with that kind of margin of error, and I’ll show you a system I don’t want my life hanging on,” says Goodbread.

“This is an area in flux, and changes are made year to year or month to month,” says Mark Bloom, assistant director of the DNA learning center at New York’s Cold Spring Harbor Lab.  “People will flip-flop back again before DNA is used consistently in U.S. courts,” he says.  “If you inject DNA into a jury, the lay person says ‘Aha.  Super science.  Guilty.’  It’s light-years from that,” he says.

There have been major breakthroughs in the application of DNA testing in the conviction of offenders.  DNA testing was used for the first time in 1987 to secure a rape conviction in an Orlando, Florida court case.  Since then, DNA testing has been used in more than 24,000 American criminal cases.  In April of 1994, convicted murderer Timothy Spencer died in Virginia’s electric chair.  Spencer was the first person to be executed in a case based on DNA evidence. It is increasingly common to have DNA evidence presented in cases dealing with assault charges, particularly those of a sexual nature.

Prosecutors rarely hinge a case solely on DNA testing, says Rockne Harmon, deputy district attorney for Alameda County in Oakland, CA.  “It’s not like a fingerprint, but it has powers of its own when you need it.”  Both prosecutors and defense attorneys agree the technique can be flawless in excluding criminal suspects.  You don’t have to deal with statistical probabilities.  You either have a match or you don’t.  Out of 8,000 cases studied at the FBI lab, 35% of conclusive results eliminated the suspect.  Critics charge that prosecutors and the FBI claim more accuracy for the testing techniques than they warrant and they inflate probability figures to downplay the chances of a mismatch.

DNA evidence is especially useful in rape cases.  The FBI and Scotland Yard report that one-third of all suspects in rape cases are released before booking because DNA evidence exonerates them.  Until recently, few defense attorneys could refute the prosecutions’ complex calculations.  That left juries in awe of the apparent accuracy of DNA tests.  Most trials where genetic evidence is admitted end in conviction, and in only a handful of cases has the jury chosen to ignore DNA crime data.

In recent years, defense lawyers have grown more successful in attacking DNA profiling.  The debate has left appellate courts confused.  In most states, scientific evidence is admissible only when it has “gained general acceptance” in the scientific community.  That standard was recently overturned by the U.S. Supreme Court, giving judges more latitude in accepting such evidence.  California, however, still abides by the old restrictive standard, and at least one state appeals court has ruled DNA evidence inadmissible.

Within the decade, the faster PCR genetic test, coupled with more discriminating techniques, will require even less tissue and produce far more certain odds of a match.  Though DNA testing has been used in only a small fraction of rape and murder cases, juries are beginning to expect genetic evidence.

Pennsylvania’s Superior Court ruled in December of 1992 that every accused rapist in the state is entitled to DNA testing in an effort to prove innocence.  The ruling could force the state’s prosecutors to test DNA in all rape cases.  Today, most states allow DNA testing in court, even if its admissibility is not consistent from state to state.

The costs involved – both time and money – to prove a suspect’s guilt in court is a strong disadvantage of DNA fingerprinting’s use as conviction evidence.  Countless dollars have been spent on expert witnesses, not to mention lawyers, in a series of pretrial admissibility hearings around the country.  After weighing the competing claims of scientific experts, one court will find DNA crime evidence admissible, while the next court, often hearing from the same experts, will conclude just the opposite.

Some see prostitution as victimless crime which is not a legal term but a term used for some acts that are considered crimes under the law but seem to have no victim. In the case of prostitution, it is viewed by some as a commercial exchange between two consenting adults. It is not, however, an arguable defense for solicitation under the US criminal justice system. The National Task Force on Prostitution suggests that over one million people in the US have worked as prostitutes in the United States, or about 1% of the population. Solicitation arrests are largely made by arresting the prostitute 80% versus the customer 10%. Prostitution is legal in counties with less than 400,000 residents in the state of Nevada, which excludes Clark County and its famous city Las Vegas.

If a third party orchestrates the transaction of prostitution they are guilty of solicitation for sex and are known as a middleman and can be charged for pimping or pandering. Pimping and pandering are both solicitation crimes however there are some differences. Pimping involves the following elements: obtaining a prostitute for another, arranging a meeting with a prostitute, and receiving payment for the services knowing that the money is resulting from prostitution (akin to a manager). Pandering occurs when a person solicits another person to perform an act of prostitution for themselves or a third person or when they knowingly provide a location for the purpose of being solicited by someone to perform an act of prostitution (akin to a recruiter).

Most arrests are made by undercover officers. A person who offers to perform a sex act with an undercover officer for money can be arrested for solicitation of prostitution. Undercover officers are also used to arrest customers by posing as a prostitute. When a person looking to pay for sex approaches an undercover officer and makes, by words or gestures, this request, the person can be arrested for solicitation of prostitution.

Solicitation penalties applied by the criminal justice system vary based upon the nature of the offense and for the purposes of this article do not include penalties for crimes involving a minor which are substantially more severe. The penalty for solicitation of prostitution is a misdemeanor in most states this is true for the prostitute and the customer equally.

Typically the defendant would spend less than a year in the county jail in which the offense was committed, pay a fine or both. Pimping is a felony with sentences of at least one year in state prison for the first offense and increasingly longer terms for repeat convictions. Pandering is also a felony with the punishment ranging from one year to six years in state prison and longer terms for repeat convictions. Sentences will be longer if you are convicted in a state that has what is called a “three strikes” statue. If that is the case a conviction could result in a life sentence.

Defending a case of solicitation is possible. Entrapment is a defense and usually the first defense that would come to mind in this situation. Entrapment cannot be used when a police officer poses as a prostitute or a customer and the defendant approaches and solicits them. Entrapment is a defense only if a person is approached by an undercover prostitute or customer and the defendant was not initially going to solicit a sexual transaction. For example, an undercover cop may not approach a person and ask them to pay for a sexual encounter or offer to provide a sexual encounter for payment in order to arrest and prosecute the person. Another possible strategy would be for both parties to state that no payment was exchanged. This would work if the police do not tape surveillance activities, and there are no prior arrests on record.

The crime of sexual assault is a compilation of several different acts that involve conduct of a sexual or indecent nature toward someone else that is accompanied by physical force or even the threat of physical force or that causes fear, shame, or mental suffering. The essential element in all sexual assaults is lack of consent. Basically, sexual assault can include any adult sexual activity and can be divided into two sub-categories; physical sexual assault and non-physical sexual assault.

Sexual assaults of a physical nature include severe acts such as: intercourse / rape (the forceful sexual penetration of another), spousal rape (a spouse or domestic partner who has had sexual relations with the perpetrator but in the specific instance did not wish to do so), sodomy, oral copulation (both of which are types of rape), hand to genitalia contact, date rape (a person agrees to meet or go somewhere with the perpetrator but does not want sexual contact) and the torture of a victim in a sexual manner. Physical acts that are less severe in nature include inappropriate touching (unwanted pinching, slaps on the buttocks), forced kissing and forced nudity, photography, and video of people in sexual poses against their will (the victim in this case is aware of what is taking place).

Sexual Assaults of a non physical nature are considered sexual assault but do not include the element of force but still lack the victims consent. Acts of this nature include groping in crowds, peeping, sexting (the act of sending sexually explicit messages or photos electronically, primarily between cell phones), statutory rape (sexual contact that occurs with a person who is a minor and thus cannot legally give consent) and contact between any body parts and the private parts of another. This last is termed as lewd and lascivious conduct which is a legal term for any other behavior that is intended to arouse sexual pleasure for the assailant. Lewd and lascivious conduct is a broad category of sexual assault used by law enforcement when exactly what happened is not clear. When the acts are not clearly defined, the lack of consent and the intent to arouse sexual gratification will be used as a test to determine if the behavior is a sexual assault. According to the National Crime Victimization Survey, sexual assault also includes verbal threats, for example “wait until I get you home I’m going to….” or “ you look so hot I am going to ….” etc.

Sexual assault charges and penalties vary due to the broad area that the crime covers. Factors that influence penalties includes; the state that you are charged in, whether it was aggravated (a weapon was involved) the age of the victim and the seriousness of the offense. Sexual assaults of a non physical nature will like mete out far less penalties than offenses that are of a forcible nature. Penalties range from misdemeanor charges (less than one year in the county jail, a fine or both) for something such as sexting or peeping. The greater physical such as date rape offenses carry more penalties and are generally classified as felonies. The penalties range from one year in state prison to life in prison for aggregated cases or repeat offenders. Typically the federal government prosecutes these crimes only if they involve the crossing of state lines, occur on federal property, or involve a minor under twelve. The penalties for federal crimes range from not less than one year to life in prison. All states currently have sex offender registration laws and the federal government requires that a person must register if they are convicted of felony sexual assault charges. This will follow the perpetrator throughout their life as registry is published on the internet and offenders must re-register if they move.

Defending sexual assault charges in the criminal justice system is difficult but can be done. In cases that do not involve a minor, consent can be challenged. Other defenses include entrapment, or false allegations. One study showed that over a 9-year period, up to 16% of sexual assault allegations in one center were shown after police investigation to be false allegations which is a crime.

How is the offence defined in rape law? There are two kinds of rape, forcible rape and statutory rape. Essentially forcible rape is defined in most states as sexual relations with another individual against their will. Most statues do not discriminate between marital status, age, gender or sexual orientation of the victim or perpetrator. However, as of 2007 the FBI reports rapes only as a crime perpetrated by a man against a woman. There are four key elements required to sustain the charge of rape.

To convict someone of rape the prosecution must show that the act was committed without the victims consent or by deception. By simply saying “no” a victim is withholding consent. Persons who are physically or mentally impaired which, includes intoxication or unconsciousness are not capable of giving consent.   Minors are also excluded as being able to give their permission for sexual relations. Deception can also be used in a rape charge. If for example, a doctor uses the pretext of examination to penetrate a person it would be considered rape.   The next element is force. Force does include but is not limited to physically overpowering the victim. Threats that compel the victim to submit to a sexual act where they would otherwise not do so is also considered force. Threats include any action or statement that would cause the victim to fear for their safety or well being of them or another.  The third element to a rape is the actual sexual act. Acts include penetration, intrusion or manipulation of a sex organ, oral copulation, sodomy and penetration with a foreign object.  The final element, which is true of any crime, is intent or mens rea in which a person knowingly commits the act and that the act would cause harm. Mental or developmental disordered persons as well as some minors lack the ability to know that their acts are wrong.

The criminal justice system’s penalties for rape vary based upon the state of conviction and special circumstances such as repeat offenses, use of a firearm or weapon and sentencing enhancements such as three strikes laws.   For the most part rape law dictates that the offense carries a 20 year state prison term and a second offense can carry a life imprisonment term. Aggravated rape carries a sentencing of any amount up to and including life in a state prison. If the defendant is serving a term for a second or subsequent offence, he or she must serve at least two-thirds of that sentence before being eligible for release. According to United States Sentencing Commission the sentencing for rape by all states and U.S. territories breaks down as follows:  twenty (37.0%) provide for a maximum term of life imprisonment for rape, twenty-four (45.3%) have a maximum penalty of 20 years or more.

Statutory rape occurs when the victim consents to sexual relations with another but is not of legal age to do so. The legal age of consent varies state to state. The average age is approximately 16 years of age, with some states restricting consent to 18 and some allowing as young as 14.  Age differences between the parties can have an impact on the penalties imposed upon conviction. Penalties vary from state to state, in California up to 1 year in the county jail (a misdemeanor) or up to life imprisonment in Montana.  All states currently have sex offender registration laws and the Federal government requires that a person must register if they are convicted of felony rape charges.

Under rape law defending a charge can prove to be quite difficult. If there are no witnesses or physical evidence such as DNA if can come down to the testimony between the accuser and the defendant. If that is the case a defense approach could be to argue consent, that the victim was a willing participant.  In cases of statutory rape an argument could be made that the minor represented their self as being the age of consent.