What is rape?

Rape is defined as any act of non-consensual sexual penetration. An individual may be charged with the crime of rape or other specific types of rape, such as statutory rape, date rape, gang rape, incestual rape, prison rape, or marital rape. Rape is considered a violent crime and carries heavy sentences, even for a first offense, and can be punishable by several years up to a life sentence.

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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Written by Jeffrey Johnson
Insurance Lawyer Jeffrey Johnson

UPDATED: Jul 15, 2021

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Rape is any act of non-consensual sexual penetration. It doesn’t matter if the victim was raped by force or only under duress, the crime is still rape. An individual may be charged with the crime of rape or other specific types of rape such as statutory rape, date rape, gang rape, incestual rape, prison rape or marital rape.

A person who rapes (a rapist), can be either a male or a female. A rape victim can also be a male or a female. Rape can include vaginal intercourse, anal intercourse, oral sex or penetration with any object or body part.

Any degree of penetration is sufficient to constitute rape, ejaculation is not required. Moreover, in many jurisdictions each penetration is a new rape and could result in consecutive sentences.    

Consent, or lack thereof, is one of the main elements of the crime of rape. Statutory rape is committed even when a minor under the age of consent willingly engages in a sexual act with the adult, because the minor is unable to legally consent.

An intellectually disabled person is also legally incapable of consenting to sex. In the context of other types of rape, whether or not there was consent to sexual penetration will be derived by the facts particular to each case.

Consent is the most common defense to rape charges. Both the actions and the statements of the victim will be assessed for consent. However, it is important to know that a victim does not necessarily consent to sexual penetration just because he or she did nothing to stop it.

Even if an individual at first consents to the sexual act, he or she may withdraw consent at any time. Further, there must be consent to every sexual act – just because an individual consented in the past, doesn’t mean he or she cannot withdraw this consent to future acts.

Finally, it is important to remember that the defense of consent is unavailable in situations in which the rape victim is unable to consent legally, as in a statutory rape.

Many rapes happen when there are drugs and alcohol involved. Whether a victim was heavily under the influence of drugs or alcohol can also have an effect in whether or not the victim consented to the sexual penetration.

Date rape drugs, drugs that are used by some individuals to sedate a victim in order to have sex with them, are odorless and tasteless, usually mixed with alcohol, and can render a person unable to prevent a sexual assault. Date rape drugs can also cause a person to fall unconscious.

However, just because the individual did nothing to stop the sexual act does not mean that they consented to it. Further, sexual penetration with someone who is unconscious or asleep is virtually always deemed a rape, as there is no way for the individual to give their consent to the act.

Rape is considered a violent crime and carries heavy sentences, even for a first offense. Depending on the circumstances, rape may be punishable by several years up to a life sentence.

The death penalty is no longer given in cases of rape, but life sentences are not infrequently given. Aggravating circumstances increase the penalties for rape significantly.

For example, where the victim is elderly or very young, where serious injury either physical or emotional was caused to the victim, and where excessive amounts of violence were used in the commission of the rape or great bodily injury was caused.

Where a rape was planned in advance or repeated acts of rape occurred, or where a rapist has prior convictions for rape, sentences will be longer. Other aggravating circumstances include subjecting the victim to sexual perversion in addition to the rape.

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