The crime of rape is generally included in the category sexual assault. Rape is described as the sexual penetration of a person without their consent. Rape is usually committed by physical force or threat of force. It is often referred to as a crime of power.
As described by its elements rape is (1) the sexual penetration (2) of another person (3) without their consent.
Sexual penetration refers to sexual intercourse. The main determining factor whether a particular sexual intercourse is considered rape is connected with the question of consent. Lack of consent renders a particular sexual intercourse rape. Only “intelligent, knowing, and voluntary” submission to sex is considered valid consent. Failure to resist cannot be interpreted as consent. Lack of consent on the other hand can be inferred even if the victim did not say no directly.
Certain factors influence the victim’s ability to give valid consent in the eyes of the law. In most jurisdiction children under the age of 18 are held by law incapable of consenting to sexual intercourse with an adult. If an adult (anyone over 18 years of age) has sex with a minor the intercourse is considered rape as per the statute and is called “statutory rape.” All states have such an age of consent threshold (either 16 or 18 years of age). Judges residing in statutory rape cases sometimes consider the age difference between the adult and the minor in order to be more lenient if for example the minor is 17 and the “adult” is 18. Other factors such as a mental disorder, a development disability or the effects of drugs or alcohol can also render a person incapable of consenting in the eyes of the law.
Rape takes on different forms such as stranger rape, acquaintance rape, date rape or marital rape. In case of a stranger rape the victim does not know the attacker whereas in an acquaintance rape the victim and the perpetrator may be friends, neighbors or any kind of acquaintances. Date rape and marital rape are special forms of acquaintance rape. Date rape refers to rape between two people who are dating whereas marital rape is between husband and wife. It is important not to dismiss these last two. Even if two people are in a relationship (or are married) the law still requires valid consent from both parties to the sexual intercourse. Rape is not a crime that is applicable only in heterosexual encounters. Homosexual couples and encounters require the same consent of both parties when it comes to sexual intercourse.
Many states have enacted so called “Rape Shield Laws.” Rape shield laws prohibit certain evidence to be presented at trial in rape cases. Clothing the victim was wearing at the time of the attack (short skirt, deep décolleté etc.), the victim’s general reputation and chastity (even if she has a reputation of sleeping around) or any prior consensual relationship with the defendant is non-admissible as per these laws. The idea behind the law is that as long as the victim did not give valid consent, so in essence she did not say yes to the sexual intercourse, it does not matter what she was wearing or whether she exhibited sexually teasing behavior, her wish not to have intercourse should have nevertheless been respected.
The penalties for rape vary by state and can potentially include jail time, probation including community service and rehabilitative programs for sex offenders, registering as a sex offender, and fines. As with all crimes there are certain aggravating factors that can enhance the penalties if for example the victim was a minor, a senior citizen or mentally or physically disabled, if a deadly weapon was used during the attack or the victim was disfigured, mutilated or suffered any other permanent physical damage.