What is rape?


One of world’s first felonies, rape is the unlawful "carnal knowledge" of a woman who has not given consent to the man. 

Historically, the only sex crimes were RAPE and SODOMY. From the 1600s to 1970, rape law required that some level of resistance had to be shown.  In 1970, most states dropped the requirement that resistance had to be corroborated.  In addition, the laws also prohibited:

  • testimony about a women's past sexual history

  • the requirement that a rape had to be reported promptly

  • marital exception. 

All forms of sexual penetration -- vaginal, anal, and oral -- fall under today's criminal sexual assault statutes. And the law is now gender-neutral.

Rape is a common crime generally committed because of : low self-control, impulsivity, lack of respect for rules, deficient social skills, a tendency to lose control, and the need to prove masculinity.   Cultural norms, going back to ancient times, also feed a rapist's sense of legitimacy. 

Types of Rape

One of the problems with defining rape lies in how it is viewed.  Some people believe it to be a crime of violence whiles others believe it is a crime of sex.  And still others view it as culturally accepted under certain circumstances.  In reality it involves sex and a desire to dominate or control others.  Over the last several decades, there has been a lot of legislation at the state, federal and international level to define what is and is not rape.  General, as well as specific, definitions and terminology have been the result of this legislation. Following is some of the more general terminology and its definition.

In about 80% of rape cases, the victims knew their rapist.  Acquaintance rape is a sexual assault by an individual known to the victim. 

Date rape is a sexual assault by an individual with whom the victim has a "dating" relationship and the sexual assault occurs in the context of this relationship.  Most date rapes occur on college campuses.  About 16% of college students report being the victim of date rape, and other estimates run as high as 50%.  It tends to occur at the end of an unplanned date or when the woman has been picked up in a social setting. Typically, sexual innuendo and verbal aggression are used by the perpetrator, with both victim and offender usually intoxicated.

Most date rape research has focused on the miscommunication that takes place in dating customs.  There are distinct differences in perception between men and women regarding what kind of clothes are worn, how much money is spent on a date, and what a "nightcap" means, for example.

Estimates are that one in ten marriages involve at least one incident of marital rape.  

Four different techniques for criminalizing spousal rape have been used. 

  1. Most states simply removed the marital rape exemption, without adding any other language. 
  2. Other states replace the exclusionary language with text specifying that marriage to the victim is not a defense. 
  3. A few states have created a separate offense of spousal rape.  
  4. In jurisdictions where the law does not specify spousal rape, courts generally interpret the law to include spousal rape. 

Marital rape cases are difficult to prosecute. Some states still grant the husband absolute exemption, or immunity, from spousal rape charges because of the privilege that a wife cannot testify against her husband.  Partial exemptions, excluding violence between intimates, is much more common.  Marital rape was not a crime until the late 1970s (1993 in North Carolina). It is now a crime in all 50 states and the District of Columbia.

The area of lesser known victimizations includes sexual assaults and abuse by people in positions of trust and authority over a victim.  Such cases include: doctors, therapists, priests, police officers, prison guards, custodians, and teachers (to name a few).  Activities such as "sex for an A" in the teacher-student context is clearly a type of rape. 

In some states the law has defined degrees or levels of rape based on the amount of force used.  Instead of calling it rape, these laws are referred to as "Criminal Sexual conduct."

  • 1st degree -- the defendant was armed with a weapon, aided by another person (gang rape), or caused physical injury

  • 2nd degree -- "sexual contact" with an "intimate area" where at least one other element of 1st degree is present.

  • 3rd degree -- sexual penetration accomplished with force (rough sex)

  • 4th degree -- sexual contact accomplished with force (rough touching)

What constitutes rape?

The elements of RAPE are: 

  1. actus reus of penetration; 

  2. actus reus of use of force or threat of force; 

  3. the circumstance of non-consent; and 

  4. mens rea of engaging in sexual activity by force or threat of force without consent. 

Penetration is defined as "however slight".  Merely putting a finger between the folds of skin over a vagina is penetration, and according to the intrinsic force standard, the act of penetration subsumes, or includes by inference, the act of force. 

Threats of force must have created an objectively reasonable fear OR a real fear of imminent bodily harm. Words do NOT have to be exchanged to express a threat. The law looks at the age, size, and mental condition of both perpetrator and victim. The physical location and relationship (if position of authority or domination) is also looked at. Proof of non-consent does NOT require the prosecution to prove or disprove the victim announced any consent. The law looks at the physical actions rather than words.

About the victims

As far as victims in treatment, one of the problems that ends up taking place is, if a person is victimized sexually, there is a good chance the trauma is just not going to go away through the passage of time. It can adversely affect the relationships that you have in the future with other males.  

Victims of rape face problems which are very specific to their type of victimization. Because the rapists may have been a part of their lives or someone with whom they socialize, victims often have to face their assailants long after the rape. They frequently blame themselves and hold themselves accountable for not having better judged the character of their perpetrators, or for allowing themselves to be in the situation in which the rape occurred.  Victims suffer physically, emotionally and financially. Rape-related Posttraumatic Stress Disorder (RR-PTSD), a condition suffered by almost one-third of all rape victims, includes sleeping and eating disorders, nervousness, fatigue, withdrawal from society and distrust of others. Many victims suffer from one or several of these symptoms, and some victims are affected for many years.

The Justice System Response

Prosecuting persons who know the victim for rape is difficult.  Consent is often ambiguous. Also, police are often reluctant to take seriously charges of acquaintance rape, or when alcohol or drugs are involved. Historically, rape law required at least two independent sources of evidence: the sworn testimony of the victim that they were coerced or did not give consent; and the collection or recovery of semen.  Standard procedure for handling a rape case almost always requires two medical examinations (one for the treatment of injuries, disease and pregnancy testing; and another for the forensic collection of evidence using "rape kits").

Some states do not require the recovery of semen, and they go with the victim's testimony only. So-called "shield laws" prevent the victim's sexual background from being used against her, but this doesn't prevent defense lawyers from doing what they have to do -- impeach the testimony of the rape victim on the stand.  The overall thrust of the criminal justice system response is to find ways to treat the victim with more dignity and sensitivity.  Police departments are starting to use female investigators to handle all rape cases, and referral to community support groups takes place with some regularity.  

Sexual Assault Information Page
Spousal Rape Laws: 20 Years Later

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