Can a person be charged with raping someone of the same gender?
Traditionally, rape meant forced sexual penetration of a female by a male. But most states have modernized their laws to make the gender of the perpetrator and victim immaterial.
Answer: In general, yes, although sexual assault laws differ from state to state. However, anyone who engages in sexual contact with another person without their consent is at risk for prosecution in every state in the U.S.
State Sexual Assault Laws
As is true of most criminal laws, each state has its own definition of rape in its criminal statutes. The definition of rape, often called sexual assault or sexual battery in current criminal codes, differs from state to state.
Traditional definition of rape
Although the modern trend is to define rape or sexual assault without regard to the gender of either the victim or the perpetrator of the assault, most societies traditionally defined rape as vaginal intercourse of a man with a woman without her consent. This very narrow definition failed to address not only same-gender rape, but other types of sexual assaults (such as forced fellatio).
States with gender-neutral laws
The vast majority of state rape or sexual assault statutes define the crime in a gender-neutral fashion, outlawing nonconsensual sexual contact regardless of the genders of the victim and offender. For example, rape in California, and several states, is defined as nonconsensual sexual intercourse with a person other than one’s spouse. (Cal. Pen. Code § 261.) Florida, New York, and several states define sexual battery as oral or anal penetration of another person with the sexual organ of or an object wielded by the offender. (Fla. Stat. Ann. § 794.011; N. Y. Pen. Law § 130.35.) In these statutes the genders of the victim and offender are not specified.
States with gender-specific laws
But a few states do restrict rape to male sexual assault of a female victim. For example, in Alabama, rape is defined as forcible sexual intercourse with a person of the opposite sex. (Ala. Code § 13A-6-61.) However, Alabama also has a “sodomy” law that makes it a crime to force another person to engage in “deviate sexual conduct.” (Ala. Code § 13A-6-63.) Alabama defines “deviate sexual conduct” to include “sexual gratification between persons not married to each other involving the sex organs of one person and the mouth or anus of another.” (Ala. Code § 13A-6-60.) Several of the states that specify the gender of the victim and offender have separate statutes outlawing nonconsensual sexual conduct such as anal penetration, regardless of the genders of the victim and offender.
Defenses to Same-Gender Rape
The defenses to rape are the same, regardless of the gender of the victim and the assailant. Here are a few of them.
Because lack of consent is an element of rape, evidence that the victim consented will usually lead to an acquittal. This defense is not available where the defendant procured the victim’s consent through coercion (for example, by threatening the victim’s job or loved one) or by intentionally rendering the victim incapable of giving consent through the administration of intoxicating substances.
No sexual contact
Where a defendant can show that he or she did not have sexual contact with the victim, such evidence will also lead to an acquittal. For example, a doctor examining a patient may have engaged in physical conduct that, strictly speaking, fits the definition of “penetration with a foreign object.” However, because the doctor’s intent in performing the act was medical and not sexual, the penetration was not rape.
See a Lawyer
Rape or sexual assault are very serious crimes. If you have questions about these crimes, talk to an experienced criminal defense lawyer in your area. If you or someone you know has been charged with rape or sexual assault, see a lawyer right away, because any delay may lead to the loss of important evidence. If you or someone you know believes they may have been the victim of rape or sexual assault, contact the police immediately and find a rape crisis center in your area, where you can talk to a counselor.