Rape: Legal Aspects

The traditional offense of rape required proof of five elements: penetration, force and resistance, nonconsent, absence of a spousal relationship (the marital exemption), and a culpable state of mind (mens rea). This section explains these elements and the modern evolution that has led states to modify or abandon traditional requirements.

One feature of the modern evolution has been the abandonment of the term rape in many states and the use of a gender-neutral term such as sexual battery to describe the offense. In treating current law, this section discusses the statutes (however labeled) that apply to conduct traditionally called rape.

Penetration. The act of rape, described by Blackstone as "carnal knowledge," has always required sexual intercourse, in the sense of some penetration (however slight) of the penis into the vagina. Ejaculation is not required, but in some jurisdictions, penetration by objects other than the penis traditionally was insufficient, as was penetration of other parts of the body (e.g., the mouth or anus). The offense of rape was therefore gender-specific (only a woman could be raped) and was inapplicable to many serious sexual abuses, such as forcible sodomy. Other offenses partly filled this gap; such conduct could be prosecuted as sodomy or sexual assault. But neither offense was punished as severely as was rape.

The modern view of rape law as a means to protect physical integrity and sexual autonomy (rather than merely chastity and male control of sexual access) has led to change in the penetration requirement. Modern statutes typically punish as rape the forcible penetration—by any object—of a woman's mouth, anus, or vagina, and most rape statutes apply to penetration of a male victim as well. In states that limit the offense of rape to sexual abuse of a woman, an offense carrying a different label (but usually identical penalties) applies to analogous sexual abuse of a man.

Force and resistance. Under the traditional definition, a rape conviction requires proof that the sexual act was committed "forcibly and against [the victim's] will" (Blackstone, p. 210). Thus, there must be both force and a lack of consent. Except in three special situations, nonconsent alone is not sufficient.

The three cases in which intercourse traditionally has been equated with forcible rape, even in the absence of physical compulsion, are those in which the woman was unconscious, was mentally incompetent, or gave her consent under certain false pretenses.

The last category has a large history. Traditionally, a man who obtained consent by making a false promise of marriage was not considered a rapist, but he could be prosecuted for seduction. Other deceptive inducements were legally permissible, and in the 1930s most states abolished the crime of seduction. Thus, deceptive inducements can no longer lead to prosecution for any crime.

Deception can, however, support a rape prosecution when it involves "fraud in the factum"—that is, deception about the nature of the act agreed to rather than mere deception about the inducement for agreeing. Thus, it is considered rape for a doctor to penetrate a woman sexually on the pretext of examining her with medical instruments, or for a man to obtain a woman's consent by impersonating her husband. Apart from the three categories of unconsciousness, mental incompetence, and fraud in the factum—and consensual sex with a minor ("statutory rape," discussed below)—a rape conviction requires proof that submission was compelled by force.

The rationale for requiring proof of force is not self-evident, since many think that intercourse without consent should be an offense whether or not force was used. One rationale for the force requirement is that rape is considered a crime of violence, and penalties are severe. But this explanation implies that nonconsensual intercourse should qualify as a lesser offense, just as it is a crime to take property without consent by force (robbery) or without force (theft). But nonconsensual intercourse without force traditionally was not an offense at all, and this is still true in most states. Legally, force remains essential to distinguish criminal misconduct from permissible behavior.

The need for proof of force is sometimes explained on the ground that consent is too amorphous in sexual matters; it is argued that in the absence of force, genuine nonconsent is difficult to distinguish from "reluctant submission" or even from coy but voluntary participation. Others, however, argue that "reluctant submission" involves a harm the law should not ignore and that consent to sex is no more difficult to determine than consent in other important matters. Most fundamentally, critics of the force requirement argue that the law should protect not only physical safety but also sexual autonomy—the right to choose whether and when to be sexually intimate with another person. That right is denied not only by physical force but also by nonviolent actions that interfere with freely given consent.

These arguments for abolishing the force requirement have begun to make headway. Several states now punish all cases of intercourse without consent and treat force merely as a factor that aggravates the severity of the offense. But this remains a minority view, accepted in less than a dozen states. In most states force remains an essential element of the offense.

As traditionally interpreted, the force requirement could be met only by acts or threats of physical violence. In addition, as a corollary of the force requirement, the prosecution had to prove that the victim resisted. Absent resistance, courts assumed that the victim freely chose to acquiesce. One court, reflecting the view of early-twentieth-century male judges, stated, a woman "is equipped to interpose most effective obstacles by means of hands and limbs and pelvic muscles. Indeed, medical writers insist that these obstacles are practically insuperable in absence of more than the usual relative disproportion of age and strength between man and woman" (Brown v. State, 106 N.W. 536, 538 (Wis. 1906)).

Under the traditional resistance standard, courts required that the victim resist "to the utmost." Convictions were therefore difficult to obtain even in cases of extreme abuse. In addition, the resistance rule in effect required the victim to fight her aggressor, even when that response could expose her to great danger.

Beginning in the 1950s courts and legislatures began to relax the resistance requirement, recognizing that resistance should not be required where it would be dangerous or futile. Today, most states still require resistance, but the requirement is less rigid than in the past. Courts require "reasonable" resistance, sometimes described as "resistance of a type reasonably to be expected from a person who genuinely refuses to participate in sexual intercourse" (former N.Y. Penal Law 130.00(8) (1977), repealed (1982)) or as "a genuine physical effort to resist as judged by the circumstances" (State v. Lima, 643 P.2d 536, 540 (1982)).

Many states, taking the next step, have in theory abolished the resistance requirement. In these jurisdictions, however, the prosecution still must prove actual or threatened force. As a result, the resistance requirement often resurfaces in practice, because it is difficult to show that a defendant compelled submission by force, unless there is evidence that the victim physically resisted his advances. Evidence of resistance also remains important because some jurors still believe that a woman who only protests verbally, not physically, is not really unwilling.

With or without a resistance requirement, nearly all states require proof of "force," understood to mean that the defendant compelled submission by physically overpowering the victim or by threatening to inflict bodily injury. Current interpretations of the force requirement are more flexible than in the past. Courts once insisted, in most cases, on proof of extreme brutality or an explicit threat of physical harm. Cases involving black defendants and white complainants were different; in those situations courts seldom insisted on proof of express threats or direct victim resistance. In cases involving white defendants or black defendants accused by black complainants, however, courts usually held that implicit threats and victim fears resulting from an intimidating situation were insufficient. Today, courts are more willing to find implicit threats sufficient. And even without an implicit threat, a complainant's fear can satisfy the force requirement, provided the fear is "reasonably grounded."

But nearly all courts insist that the injury feared must involve bodily harm; coercion by threats to inflict nonphysical injury is generally considered insufficient. In State v. Thompson, 792 P.2d 1103 (Mont. 1990), a high school principal allegedly compelled a student to submit to intercourse by threatening to prevent her from graduating. The court held that this threat, though clearly coercive, did not make the principal guilty of rape because he had not threatened any physical harm.

A few states have modified the strict rule that force must involve physical violence. The Pennsylvania Supreme Court has held that force includes "[any] superior force—physical, moral, psychological, or intellectual—[used] to compel a person to do a thing against that person's volition" (Commonwealth v. Rhodes, 510 A.2d 1217, 1225 (Pa. 1986)). This approach avoids the narrow strictures of the physical force requirement. But as it leaves unclear the line between compulsion and legitimate persuasion, there is concern about its potential vagueness. The Model Penal Code expands the concept of force in a less amorphous manner, permitting a conviction for "gross sexual imposition" when a man compels a woman to submit "by any threat that would prevent resistance by a woman of ordinary resolution" (Model Penal Code § 213.1(2)(a)).

The New Jersey Supreme Court has held that the force requirement can be met by the physical actions intrinsic to intercourse, whenever the complainant does not consent (In re M.T.S., 609 A.2d 1266 (N.J. 1992)). This approach in effect eliminates force altogether and makes nonconsent sufficient to establish the offense. As a matter of statutory interpretation, this outcome is awkward because it equates violent and nonviolent rape for grading purposes and has the effect of imposing a high mandatory minimum sentence for both. Grading problems aside, M.T.S. achieves a significant result by criminalizing all intercourse without consent. Several states arrive at a similar outcome, with more tailored grading of penalties, through statutory reforms that require force for the most serious form of rape but create a lesser offense for nonconsensual intercourse without force.

To the extent that the criminal law should protect women and men not only from physical abuse but from all interference with sexual autonomy, this last approach seems best suited to a modern law of rape. Critics of this approach argue that nonviolent interference with autonomy is not sufficiently serious to warrant criminal sanctions, or that there is excessive danger of erroneous results when nonconsent alone is sufficient for conviction. Current law is far from static, with a slow but steady evolution in the direction of relaxing or eliminating the requirement of physical force.

Nonconsent. Even when a defendant has used force, his sexual conduct is not rape if the complainant consented; the act must be "against her will." A major drawback of this requirement, as administered in the past, was that it tended to encourage a focus on the complainant's state of mind, and evidence of her prior sexual experience was often used to insinuate that she wanted to have sex (or deserved whatever treatment she received). To prevent such tactics, many modern statutes eliminate the express requirements of unwillingness or nonconsent.

The reform effort to shift the focus away from victim consent has generally been unsuccessful, however. Courts assume that the legislature did not intend to impose severe sanctions on mutually consensual heterosexual sex; as a result courts hold that consent is a defense even when statutes do not say so explicitly. Thus, consent is always a potential issue, and it seems clear that the best means to prevent evidentiary abuse is through shield laws and other control of cross-examination, rather than through a futile attempt to eliminate the consent question entirely.

Recent developments on this point tend if anything to reverse the direction of earlier reform efforts. As illustrated by the M.T.S. decision above, courts have tended to place more weight on the consent question and to de-emphasize the requirement of force. The M.T.S. court took a statutory offense emphasizing force (with no mention of consent) and interpreted it so that the force requirement was in effect read out of the law and nonconsent was read in as the essence of the offense.

The meaning of "consent" is crucial and, both in law and culture, far from clear. One perspective is illustrated by the rallying cry that "no means no." Skeptics reply with equal vehemence that "no" does not mean no, at least not always. Empirical studies indicate that for most women, most of the time, "no" does mean no. But there is evidence that a substantial minority of contemporary women (35 to 40 percent in some studies) sometimes say "no" when they are willing to have intercourse and want their date to "try harder," "beg," or "get physical" (see Schulhofer, 1998, pp. 256–260).

Reflecting this view, most states treat consent as a question to be determined by the jury under all the circumstances. A jury is permitted to treat a woman's silence or passivity as indicating consent, and it may find consent from the context even when a complainant said "no."

It is not automatically proper, however, for the legal definition of consent to track the ambiguity of ordinary language. A crucial issue in formulating standards throughout law is the question of comparative error costs. Since no rule can perfectly capture objective reality, the problem is to minimize the harm caused by errors that will inevitably occur under any legal test. Many scholars argue that the harm caused when a man assumes consent and proceeds to intercourse with a woman who was not willing is far more serious than the harm caused when a man assumes nonconsent and desists from intercourse with a woman who was willing. As a result, it is argued, a legal presumption that "no means no" is preferable, even if that rule does not capture all the nuanced ways that language can be used.

Following this approach, some courts have ruled that "when a woman says 'no' to someone[,] any implication other than a manifestation of non-consent that might arise in that person's psyche is legally irrelevant" (Commonwealth v. Lefkowitz, 481 N.E.2d 277, 232 (Mass. App. 1985)). Legally, in other words, "no" always means no in these jurisdictions.

Even this relatively strict approach, however, leaves open the problem of determining consent when a woman's response to a sexual advance is vague or ambivalent. The "no means no" standard may imply that responses short of a firm refusal do not show nonconsent. Many argue, however, that the absence of a firm refusal should not be considered a sufficient ground for authorizing the sexual penetration of another person; in most contexts a serious physical intrusion requires actual permission, not merely the absence of an unambiguous protest.

Accordingly, a number of states now define consent as affirmative permission. One statute, for example, states, "'Consent' means that at the time of the act of sexual intercourse there are actual words or conduct indicating freely given agreement to have sexual intercourse" (Wash. Rev. Code 9A.444.010(6)(1981)). This approach reflects the view that rape law should not apply only in cases of active resistance and should fully protect sexual autonomy.

The marital exemption. Traditionally, compelled intercourse could not constitute rape, no matter how much force was used, when the victim was the wife of the perpetrator. This "marital exemption" was originally based not on express statutory language but on a judicial presumption that the wife had irrevocably consented to sex with her husband. In the seventeenth century, Lord Matthew Hale wrote that "by their mutual matrimonial consent and contract, the wife hath given up herself in this kind unto her husband, which she cannot retract" (p. 629).

Until recently, the marital exemption was preserved in all American states. The Model Penal Code rape provisions likewise apply only when a man has intercourse "with a female not his wife" (Model Penal Code § 213.1(1)(2)).

Since the 1970s, the marital exemption has been under attack. The conclusive presumption that a wife always consents to sex with her husband, regardless of circumstances, is obviously untenable. Modern apologists for the exemption argue instead that in cases of marital discord, criminal sanctions represent an intrusion that could disrupt "the ongoing process of adjustment in the marital relationship" (American Law Institute, pp. 344–346). In addition, they argue, the harm of forced intimacy is less serious when the victim and the offender have "an ongoing relation of sexual intimacy."

Opponents of the exemption attack both claims. As to the first, they note that the marital exemption in its traditional form applies even when the parties are legally separated; moreover, when the parties are living together, legal sanctions for assault apply in cases of domestic violence, so there is no reason why other violent offenses within marriage should not be subject to punishment as well. As to the second claim, opponents of the exemption note that "wife rape can be as terrifying and life-threatening as stranger rape. In addition, it often evokes a powerful sense of betrayal, deep disillusionment, and total isolation" (Russell, pp. 190–191, 198–199).

Responding to these criticisms, many states have abolished their marital exemption completely, either by legislation or by judicial decision reinterpreting the common law. At least one court has ruled the marital exemption unconstitutional on equal protection grounds (People v. Liberta, 474 N.E.2d 567 (N.Y. 1984)).

Nonetheless, the exemption survives in modified form in most of the states. Though only fifteen states have abolished all distinctions between marital and nonmarital rape, many states still treat marital rape as less serious than other rapes or permit prosecution for marital rape only when aggravated force was used; some states permit prosecution only when the parties are legally separated or permit prosecution only when the parties are living apart (Shulhofer, pp. 43–44).

Mens rea. In addition to proving force and nonconsent, the prosecution must prove, as with any offense, that the defendant had a culpable state of mind. Generally in criminal law (and subject to many exceptions), culpability requires that the defendant had actual knowledge of the facts that made his behavior criminal or at least "recklessness"—an awareness that his conduct might cause a proscribed harm. As applied to rape, this principle would require proof that the defendant knew his victim did not consent, or at least that he knew this was possibly the case.

This standard culpability requirement takes on great practical significance when a rape defendant claims that he made a mistake about the victim's consent. Suppose, for example, that the victim repeatedly said "no." Even if the jury agrees that no means no and that the victim did not consent, the defendant may argue that he honestly thought she consented and that he therefore lacked culpability. When a defendant's claimed belief is patently unreasonable, a jury may conclude that he did not really hold the belief and that he is therefore culpable after all. But the pervasiveness of wishful thinking and sexist assumptions among men often makes it plausible to conclude that a defendant honestly thought he had consent, even under circumstances that make such a belief thoroughly unreasonable. The issue in such cases is to determine whether a defendant who holds an honest but mistaken belief in consent should be guilty of rape.

There was little attention to this question in the early case law, probably because the strict requirements for force and resistance would produce an acquittal in any situation where the defendant could plausibly claim a mistake about consent. When the issue was presented in Britain, the House of Lords ruled that the prosecution must prove mens rea in the traditional sense—either knowledge of nonconsent or reckless disregard of the woman's wishes (D.P.P v. Morgan, [1976] A.C. 182). Under this standard, also followed in a few American states, a belief in consent, however unreasonable, precludes conviction. Under the more prevalent American approach, negligence is sufficient; a defendant can be convicted whenever the asserted belief in consent is unreasonable. And a few American states impose a strict liability; if the jury finds nonconsent, an honest belief to the contrary, no matter how reasonable, is no defense.

The strict liability and negligence standards are often criticized on the ground that conviction for a major felony should require actual awareness of wrongdoing. But the latter standard creates a potentially serious loophole in rape enforcement because it provides no incentive for men to set aside their presuppositions and pay more attention to women's actual desires. And since carelessness is punished in other settings where it is important to encourage care (e.g., involuntary manslaughter), there is nothing unprincipled or unprecedented in imposing such liability for carelessness with respect to consent in rape.

These arguments suggest that rape liability can fairly be premised on unreasonable mistakes, provided that courts afford safeguards similar to those applied in manslaughter cases. Conviction should require proof of criminal negligence (a gross departure from the level of care reasonably expected) and the penalty imposed should be lower than that applied to intentional misconduct.

The mens rea standard applied in most American states is less demanding, in that ordinary negligence is sufficient, and it can lead to conviction for the highest grade of forcible rape. Many believe that a gross-negligence requirement is too strict and that conviction on the basis of ordinary negligence (or even strict liability) is necessary for adequate deterrence and fairness toward potential victims. There is some basis for this concern, because of continuing controversy within our culture about the ways that women express consent and continuing support for the idea that "no" does not always mean no. Against that background, some jurors might think that a defendant's mistake about consent was not unreasonable, even in the face of a woman's clear verbal protests. A strict liability standard would provide some women protection against that possibility.

But even a strict liability standard cannot fully counteract cultural attitudes of this sort. A juror who held such beliefs could conclude that the complainant in fact consented, despite her verbal protests, and hence that the defendant made no mistake at all. A legal response to inappropriate cultural assumptions might be more effective if addressed directly to defining what consent means, rather than leaving this crucial issue to be thrashed out by each jury according to its own values. Strict liability, moreover, poses a risk of unfairness to defendants who could face conviction and a mandatory prison term for conduct that was entirely reasonable by enlightened contemporary standards.

A preferable approach, therefore, might be to preserve traditional requirements of awareness of nonconsent (or gross negligence) but to define nonconsent as an absence of affirmative permission. With this definition, a defendant's belief that the complainant was subjectively willing would be irrelevant—even if sincere and even if deemed "reasonable"—when the complainant had said "no" or had remained silent, passive, or ambivalent. In such cases the defendant would know he did not have affirmative permission and therefore he would have a culpable state of mind even under strict traditional standards.