Rape laws historically only recognized crimes against women. However, under modern statutes, rape is unlawful sexual intercourse without a person's consent, regardless of gender. A defendant can be charged with rape if they engage in sexual intercourse against another person’s will or without that person's consent using force, violence, duress, menace, fear, or fraud. It is usually classified as a violent felony crime.

The defendant can also be accused and charged with rape in the following circumstances:

  • Victim Intoxication:  The defendant engages in sexual conduct with someone who is too intoxicated to consent to the sexual conduct.
  • Physical or Mental Disability: The defendant engages in sexual conduct with someone who suffers from a mental or physical disability that prevents them from being able to consent to the sexual conduct.
  • Incapacity: A person engages in sexual conduct with another that is unaware that he or she is engaging in a sexual act (e.g. a sleeping child).

Types of Rape

There are three distinct types of rape, each carrying different legal penalties:

  • Statutory RapeStatutory rape is unlawful sexual intercourse with a person under the age of consent, regardless of whether it was consensual. The age of consent varies from 16 to 18 years of age depending upon the state.
  • Date RapeDate rape is unlawful sexual intercourse committed during a social engagement between the rapist and victim. Date rape can also occur where the victim has been drugged.
  • Marital RapeMarital rape is a husband's sexual intercourse with his wife by force or without her consent. Historically, marital rape was not recognized. Marital rape is now considered a serious offense.

How Do Prosecutors Prove Rape?

In order to convict a defendant charged with rape, the prosecutor has the burden beyond a reasonable doubt to prove the following elements:

  • The defendant was engaged in some type of sexual act or intercourse with the victim (full penetration of sexual intercourse is not required).
  • The defendant and the victim were not legally married at the time of the sexual conduct in question.
  • The sexual intercourse or sexual conduct was against the other person’s will or without his or her consent.
  • Defendant engaged in the sexual intercourse through an act of force, violence, duress, menace, fear or fraud.

What Are the Penalties for a Conviction of Rape?

Rape is considered a felony and a strike under the three strikes law. The penalties of rape convictions vary in each state and depend on the circumstances proved at trial. The average penalty for a rape conviction is between 8-9 years and the penalty can be much higher depending the defendant’s prior convictions of rape. In some certain cases, a rape conviction can result in a life sentence depending on the factors proved at trial.

The potential penalties increase if the rape involved a minor or if the rape resulted in death of the victim.

What Should You Do If You Were Raped?

If you were raped, you should contact the authorities and seek medical attention immediately. Even if you do not feel or see any symptoms of physical injuries, a medical examination is necessary to prevent any sexually transmitted infections. A medical exam will also help to gather any evidence of sexual assault. After seeking medical help, you should:

  • Do not shower, bathe, or change your clothes before a medical examination. Otherwise, incriminating evidence could be destroyed.
  • If you suspect a date rape drug has been used, tell your doctor. Traces of date rape drugs disappear quickly from the body.
  • Gather all the evidence that you may have and try to write down as much information that you can remember about the circumstances of the incident including a detailed description of the person that you believe was the attacker.
  • Contact a friend, family member, or counselor that you trust who can give you the support you need.

What Can You Do If You Have Been Accused of Rape?

Rape is a serious charge with many complexities. A skilled criminal defense lawyer familiar with your state criminal laws can explain your options and help formulate possible defenses.