Rape Law

What is Rape?

Rape is a form of sexual battery performed against someone who either is unwilling or is unable to consent. Rape can take the form of a violent act, one obtained by coercion, or by taking advantage of one who is unable to resist by virtue of being unconscious, incapacitated, or legally unable to consent (usually because they are underage).

There are several types of rape, typically defined by the circumstances of the crime. These can include date rape, aggravated rape, statutory rape, and others. Different jurisdictions recognize different forms of rape, and usually these variations will carry different sentencing guidelines. Definitions defining a crime as a rape versus a lesser crime such as sexual battery also vary by jurisdiction.


In any rape case, the absence of consent to sexual intercourse is the critical factor. However, it is possible for consent to be initially given then withdrawn. For example, a spouse may rape another spouse even though the very act of marriage may be considered a form of consent to an ongoing sexual relationship. Consent may be withdrawn during the lead-up to a sexual experience. It can even be given by someone who, by operation of law, is not able to give it (such as in statutory rape or in cases of mentally disabled persons) and not amount to legal consent required to avoid rape charges.

Statutory Rape

One of the most hotly debated forms of rape is what is known as "statutory rape." Statutory rape occurs when an adult person has sexual intercourse with a person who is below the age of consent (18 in most jurisdictions). The giving of actual consent by the underage person is of no consequence, as the minor is not able to legally give consent.

In some jurisdictions, this crime is a strict liability crime (often the only strict liability crime in a state's body of law). What this means is that there is no need for intent to commit the crime. Indeed, one can take precautions against committing the crime such as asking the minor's age, looking at an identification (that turns out to be fake), or other measures, but if it turns out that the minor was below the age of consent, the other party has committed the crime of statutory rape.

Some jurisdictions have attempted to combat the inherent problems with such an approach by creating age "brackets" between which the statutory rape charge can be discretionary with prosecutors, handled as a lesser crime, or not treated as statutory rape at all. These age brackets are usually within three to five years between the minor and the other person.

Marital Rape

Once not a recognized form of rape, marital rape has only recently become a recognized criminal act. At one point, women were considered the property of their husbands and incapable of withholding consent to sexual acts. However, as women gained equal rights under the law, social views regarding rape changed as did the laws of marital consent.

Date Rape

After the use of disabling drugs, such as Rophenol (commonly referred to as "roofies"), became popular as a means of obtaining sexual intercourse from a known acquaintance came to public attention in the 1990s, states responded by passing laws explicitly targeting the act, often called "date rape." Generally, in this form of rape, a drug is placed in the food or beverage of an unsuspecting victim which renders that person unconscious or in a deeply intoxicated state in which they are unable to withhold consent. Because of the nature of this crime, many states enacted enhanced penalties against its perpetrators.

More Information

For more information about the crime of rape, please review the materials below. Additionally, if you or someone you know believes they may have been the victim of rape, you should immediately contact law enforcement. There are also a number of rape victim resources available in virtually every community in the United States, and your local law enforcement agency will probably be able to direct you to these programs. If you have either been accused of rape, or have other legal questions about rape, you can find an attorney in your area by visiting our Law Firms page.

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