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New Approach To Treating Rape Victims, Rape Shield Laws: Can They Be Fair?, Further Readings

A criminal offense defined in most states as forcible sexual relations with a person against that person's will.

Rape is the commission of unlawful sexual intercourse or unlawful sexual intrusion. Rape laws in the United States have been revised over the years, and they vary from state to state.

Historically, rape was defined as unlawful sexual intercourse with a woman against her will. The essential elements of the crime were sexual penetration, force, and lack of consent. Women who were raped were expected to have physically resisted to the utmost of their powers or their assailant would not be convicted of rape. Additionally, a husband could have sex with his wife against her will without being charged with rape. Beginning in the 1970s, state legislatures and courts expanded and redefined the crime of rape to reflect modern notions of equality and legal propriety.

As of the early 2000s, all states define rape without reference to the sex of the victim and the perpetrator. Though the overwhelming majority of rape victims are women, a woman may be convicted of raping a man, a man may be convicted of raping a man, and a woman may be convicted of raping another woman. Furthermore, a spouse may be convicted of rape if the perpetrator forces the other spouse to have nonconsensual sex. Many states do not punish the rape of a spouse as severely as the rape of a non-spouse.

Many states also have redefined lack of consent. Before the 1970s, many courts viewed the element of force from the standpoint of the victim. A man would not be convicted of rape of a competent woman unless she had demonstrated some physical resistance. In the absence of physical resistance, courts usually held that the sexual act was consensual. In the early 2000s in many states, the prosecution can prove lack of consent by presenting evidence that the victim objected verbally to the sexual penetration or sexual intrusion.

Lack of consent is a necessary element in every rape. But this qualifier does not mean that a person may make sexual contact with a minor or incapacitated person who actually consented. Lack of consent may result from either forcible compulsion by the perpetrator or an incapacity to consent on the part of the victim. Persons who are physically or mentally helpless or who are under a certain age in relation to the perpetrator are deemed legally incapable of consenting to sex.

Most states choose to label the crime of rape as sexual assault. Sexual assault is divided into degrees: first-, second-, third-, and fourth-degree sexual assault. West Virginia provides an illustration of how rape laws are typically written. In West Virginia, a person is guilty of sexual assault in the first degree when that person engages in sexual intercourse or sexual intrusion with another person and either inflicts serious bodily injury upon anyone or employs a deadly weapon in the commission of the act (W. Va. Code § 61-8B-3 [1996]). Additionally, a person age 14 years or older who engages in sexual intercourse or sexual intrusion with another person who is 11 years old or less is guilty of first-degree sexual assault. A person convicted of the crime of first-degree sexual assault in West Virginia faces imprisonment for at least 15 years and not more than 35 years and may be fined from $1,000 to $10,000.

In West Virginia, a person commits sexual assault in the second degree by engaging in sexual intercourse or sexual intrusion with another person without that person's consent, and the lack of consent results from forcible compulsion. Forcible compulsion is (1) physical force that overcomes such earnest resistance as might reasonably be expected under the circumstances; (2) threat or intimidation, either express or implied, placing the victim or another person in fear of death, bodily injury, or KIDNAPPING; or (3) fear by a person under 16 years of age caused by intimidation by another person who is at least four years older than the victim.

Another way to commit second-degree sexual assault in West Virginia is to engage in sexual intercourse or sexual intrusion with someone who is physically helpless. The punishment for second-degree sexual assault is imprisonment for at least ten years but not more than 25 years and may include a fine of from $1,000 to $10,000.

Third-degree sexual assault is committed when a person engages in sexual intercourse or sexual intrusion with another person who is mentally defective or mentally incapacitated, or when a person age 16 years or older has sex with a person who is less than 16 years old and is at least four years younger than the defendant. Third-degree sexual assault is punishable in West Virginia by at least one, but no more than five, years in prison and may include a fine of not more than $10,000.

The provisions that refer to the age of the victim and the perpetrator are called STATUTORY RAPE provisions. Statutory rape sections punish the perpetrator without regard to the consent of the victim. Such laws are in place in all states to enforce the generally accepted notions that children are incapable of consenting to sex because of their youth and innocence and that sexual intercourse or intrusion of a child by an older person is socially unacceptable and harmful to the child. The term statutory rape also refers to the sections that punish sex with physically and mentally incapacitated persons, who are similarly unable to consent to sex.

Rape or sexual assault statutes carefully define the type of contact that constitutes rape. In Hawaii, for example, the term sexual penetration is defined as "vaginal intercourse, anal intercourse, fellatio, cunnilingus, analingus, deviate sexual intercourse, or any intrusion of any part of a person's body or of any object into the genital or anal opening of another person's body … however slight." Sexual contact is "any touching of the sexual or other intimate parts of a person … or of the sexual or other intimate parts of the actor by the person, whether directly or through the clothing or other material intended to cover the sexual or other intimate parts" (Haw. Rev. Stat. § 707-700 [1996]).

Most states punish lesser sexual intrusions with statutes on SEXUAL ABUSE. Like sexual assault statutes, sexual abuse statutes are divided into degrees based on the nature of the contact. Sexual abuse consists of nonconsensual sexual contact with another person. Lack of consent is present if the victim is a minor or physically helpless or if the victim was forcibly compelled to consent to the contact. A person convicted of sexual abuse may be fined and sentenced to a term in jail or prison. Because the crime does not involve penetration, the punishment for sexual abuse is less than that authorized for persons convicted of sexual assault.

A few states have eliminated the requirement that a competent adult rape victim physically resist the attacker. Physical resistance in some rape situations presents a greater danger to the victim. The states that have eliminated the physical requirement have found it to be unfair to

require physical resistance on the part of the victim if such resistance risks greater injury. In Michigan, for example, force or coercion "includes but is not limited to" several situations, including where the actor coerces the victim through threats of force or violence and the victim believes that the actor can carry out the threats and where the actor physically overcomes the victim through the actual application of physical force (Mich. Comp. Laws Ann. § 750.520a [West 1996]). Nowhere in Michigan's rape statutes is consent based on an analysis of the victim's physical resistance.

The states that have not eliminated physical resistance as a test for lack of consent have declined to do so for fear of convicting an adult who has sex with another adult without the knowledge that he or she is not consenting. Nevertheless, even in a state that has not eliminated the physical resistance requirement for competent adults, if the victim says "No" or otherwise verbally indicates lack of consent, the perpetrator still may be convicted of rape. This point reflects the fact that prosecutors have argued, and appeals courts have agreed, that some amount of force, no matter how slight, should be sufficient to fulfill the forcible compulsion element. The sexual penetration of a competent adult, for example, may be enough force to meet a forcible compulsion requirement, if the victim indicated a lack of consent.

Most states have so-called rape SHIELD LAWS. These laws restrict or prohibit the use of evidence respecting the sexual history of rape victims and the victims of other SEXUAL OFFENSES. Before the enactment of rape shield laws in the 1970s and 1980s, rape trials often focused on the chastity of the victim to determine whether the victim was actually raped. Rape shield laws keep the focus of a rape prosecution on the actions of the defendant rather than the prior actions of the alleged victim.

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