Rape is a violent crime that is defined as unwanted sexual intercourse that is accomplished by force or threat of force. While women make up a significant percentage of rape victims, rape may be perpetrated against either men or women and may arise in same-sex or opposite-sex relationships. Although traditionally rape was limited to non-marital circumstances, most state statutes now allow for rape to occur in marital relationships when one partner is coerced or forced into sex.
Types of Rape
The most commonly recognized form of rape is forcible rape, which involves the victim being physically forced into sexual intercourse with the perpetrator. Forcible rape can occur between two individuals who know each other or are in a relationship, or it can be committed by a total stranger. A forcible rape may be committed even if no actual physical force or harm occurs to the victim. If a threat of force or bodily injury is sufficient to force the victim to comply with the perpetrator’s demands, this also amounts to forcible rape.
In additional to forcible rape, rape can occur when a victim is unable to resist sexual intercourse due to drug or alcohol intake. This often occurs in the context of date rape, when a victim may be given drugs that heavily impair his or her ability to make decisions or resist the advances of another person. In many states, statutes have been enacted that impose harsh punishments on individuals who commit date rape in order to deter this conduct.
Another form of rape occurs when a perpetrator uses his or her authority, or pretends to be in a position of authority, in order to coerce the victim into agreeing to sexual intercourse. For instance, a perpetrator may pretend to be a law enforcement officer pulling a victim over for a traffic violation and may threaten to arrest the victim unless he or she agrees to have sex.
Evidence of Past Sexual Offenses
Most states allow evidence of a defendant’s past sexual offenses in cases of rape, contrary to the general rule of evidence that past crimes cannot be used as character evidence. Most states also have rape shield laws that prevent the defendant from looking into the victim’s sexual history.
With each of these types of rape, it is important to remember that the actual act of rape occurs with even the slightest act of sexual penetration. Thus, rape can occur even if sexual contact is limited or fleeting.
The Importance of Consent
A common factor in all types of rape is the lack of consent by the victim. This element is crucial to a rape finding. Even when an individual believes that his or her partner or friend is willing to have sex, an affirmative acknowledgement of consent by both parties must occur. For example, assume a young man and woman go out on a date and have a few drinks. The woman invites the man back to her apartment to spend the night, but then she blacks out from the drinks she has consumed. Her date cannot assume that she is willing to have sex with him because she invited him back. Without her consent, the act of sexual intercourse would be rape. This is equally true if a victim is incapable of giving consent in any other circumstance. Indeed, in certain contexts, a victim below the age of consent is considered legally unable to provide consent, and thus any sexual intercourse with the victim is statutory rape.
Use of Condoms
Sexual behavior that falls within the definition of rape is probably not defensible by the victim’s request to use a condom.
Conversely, a victim who is neither coerced nor placed in circumstances that cause fear of harm, and who does not vocalize a lack of consent, may have difficulty establishing that a rape occurred even if he or she did not truly want to have sexual intercourse. Typically, the victim must manifest some evidence of a lack of consent, or be placed in circumstances where a failure to consent can be inferred.