Rape Law

rape-lawAccording to the FBI, in 2007 one person out of every thousand people in the United States aged 12 or older was a victim of rape. That works out to about 78 rapes in an hour. As large as that number sounds it doesn’t provide an accurately picture because it is estimated that only 1 in 10 rapes are reported.

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.

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