Date Rape

Sexual assault that’s perpetrated by an acquaintance, such as a date, is still rape—but issues of proof sometimes make the cases hard to prove.

No means no, even if “No” is said after dinner, drinks, and flirtation. Gone are the days when a person could avoid a rape charge by saying he was “Led on” or “She was asking for it.”  A person who forces a date to have sex commits rape.

This article discusses the crime of date rape generally. You may also want to learn about  possession of rophynol  (“roofies” or the “date rape drug”).

Definition of Rape

Most state laws do not use the term “rape” any longer, but rather refer to the crime as “sexual assault,” “sexual battery,” or by a similar term. However termed, rape is a  crime defined by and punished under state law. As a result, the definition of rape differs somewhat from state to state. In general, however, rape is defined as sexual intercourse without one party’s consent. Forced sex is not necessary for rape to occur, although when a perpetrator physically overcomes the victim, that is rape. Rape may occur in other ways, too. The victim may refuse to give consent, or may be unable to give consent due to physical or mental infirmity.

And, of course, the relationship of the victim and perpetrator do not define the crime. A person may be raped by an acquaintance, a friend, even a relative. Archaic laws in most states used to essentially allow men to rape their wives without fear of punishment, and the laws are still different for nonconsensual sex between spouses in some states. But, the mere fact that a victim knows his or her assailant is irrelevant to the legal definition of rape.

“Date” Rape

According to some surveys, the vast majority of women (as high as 80%) who report being raped say that they knew their rapist. “Date” rape is a term colloquially used to refer to sexual assault by a person involved in a romantic or potentially romantic relationship with the victim. Date rape also often carries the implication that it is not “real” (in other words, forcible) rape. As noted above, force is not an essential element to the legal definition of rape. Another social or cultural problem with the term “date” rape is that it refers back to the bad old days when women were expected to resist sexual advances (regardless of their level of interest in pursuing them) and men got a pass for being sexually “aggressive,” especially on a date.

Such stereotypes persist in the context of date rape in other ways, too. A person who accompanies his or her date home (or invites him or her in) may have a harder time convincing the police and a jury that rape occurred. Dress, behavior, consent to some sexual contact—all may factor into how credible an alleged rape victim seems to a judge and jury. After all, judges and jurors are humans with the same biases and gender or sexual stereotypes as others.

Civil Lawsuits for Damages for Date Rape

Some date rape victims have elected to forego criminal prosecution of their assailants. Instead, some victims sue their assailants for monetary damages. A plaintiff in a civil action needs to prove that the defendant violated the law by a preponderance (basically 51%) of the evidence. The state, in a criminal case such as rape must prove that the crime occurred beyond a reasonable doubt. In addition, a civil defendant cannot refuse to take the witness stand as a criminal defendant may. In order to claim the Fifth Amendment privilege against self-incrimination, a civil defendant must take the stand and assert the privilege.

Rape shield laws that prevent disclosure of an alleged rape victim’s sexual conduct with individuals other than the perpetrator do not apply in civil lawsuits, however, so the victim/plaintiff may face greater scrutiny of past sexual conduct.

In addition to remedies available under state law, the federal Violence Against Women Act (“VAWA”) gives female victims of sexual assault the right to file a federal lawsuit for damages against their assailants. (42 U.S.C. § 13981.)

VAWA 2013 reauthorization and date rape on Indian reservations

Several studies have shown that girls and women on Native American reservations suffer date rape (and every other type of sexual assault) at much higher rates than girls and women in the rest of the population. The  2007 Minnesota Student Survey  found that 9th  and 12th  grade girls on reservations reported date rape at twice the rate of girls in the general population. And, the vast majority of rapes on reservations are committed by non-Native American men. Prior to the reauthorization of the VAWA, tribal courts did not have the power to prosecute those perpetrators. In response to this evidence, Congress expanded the VAWA in 2013 to give tribal courts the authority to prosecute rapes on reservation land even where the alleged rapist is non-Native American.

Defenses to Date Rape

These are a few of the defenses a person charged with date rape may raise.

Consent

Where an individual charged with any crime of sexual assault or sexual intercourse without consent can show that the other person consented to the sexual contact or penetration, the individual charged will be acquitted. However, if the victim is under the legal age of consent or mentally incapable of giving legal consent, the defense of consent will not be available to the individual charged.

Issues of consent unique to date rape cases

The underlying relationship between the victim and perpetrator in a date rape case makes issues of consent even more prominent than in stranger rape cases. Questions of legitimate misunderstandings, when consent began and ended, how lack of consent was communicated, and assumptions made based on past consent can all arise in a date rape case. The date rape context therefore can affect the defense of consent.

Consult an Attorney

A charge of sexual assault of any type is a very serious charge. If you have been charged with a sex crime or have questions about date rape, see a lawyer experienced in criminal defense in your area.

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