Rape Laws, Defenses and Penalties

Rape is sexual intercourse that is forced on another without the person’s consent or against the person’s will. This act is criminalized throughout the United States, but the legal term for it varies from state to state.

By , Attorney · New Mexico School of Law

Rape is sexual intercourse that is forced on another without the person's consent or against the person's will. This act is criminalized throughout the United States, but the legal term for it varies from state to state. Some states label this crime as rape, while others refer to it as sexual assault, sexual battery, or criminal sexual penetration. Regardless of what a state calls this offense, however, most agree on the definition as sexual penetration or sodomy without consent.

Sexual penetration is defined in most, if not all, states as penetration of the vagina with a body part or an object. Sodomy is defined as oral sex – contact between the mouth and penis or female genitalia – or penetration of the anus with a body part or object.

Heavy petting or other unwanted sexual touching that does not involve penetration usually does not constitute rape or criminal sexual penetration. It is still is a crime but considered less serious than one involving penetration. This lesser crime often is referred to as criminal sexual contact, molestation or sexual battery.


Lack of consent is the crucial component of sex crimes. Sexual conduct becomes criminal when sexual touch is not consented to, either because the offender forces another person to be sexual against his or her will, or because the other person is considered incapable of consent or to have a diminished mental capacity to give consent. Those who are deemed incapable of consent include minors under the age of fourteen or fifteen, regardless of their mental abilities to understand the nature of the act and their ability to refuse (but see "Sexual Conduct with a Minor," below). In addition, sex with the following people is criminal if they do not have the capacity to knowingly consent:

  • a developmentally disabled person
  • someone who is mentally ill, and
  • a person who is incapacitated – drugged, drunk, or unconscious – or otherwise physically helpless.

Sexual Conduct with a Minor

In some states, sex with a minor above a certain age is criminalized only if the offender is older than the victim by a certain number of years – more than three years, for instance. This allows for a 14 year old to have sex with her 16 year old boyfriend without the boyfriend's actions being criminal. If a 21 year old had sex with a 15 year old in the same state, however, the act would be criminal.

Sexual Conduct by a Person in Authority or a Mental Health Care Provider

Many states also criminalize sex between a person in authority, such as a teacher, police officer or prison guard, and someone over whom that person has authority, like a student, a person in police custody, or a prisoner. The rationale for criminalizing this conduct is that the capacity to consent is diminished by the authority that the teacher or other authority figure has over the student or other person.

Many states also criminalize sex between a psychotherapist or other mental health care provider and a client or patient, on the grounds that the nature of the relationship and the client's vulnerable position makes the client or patient incapable of knowing, voluntary consent.


Defendants charged with rape have the usual defenses available to all criminal defendants, starting with "Someone else committed this crime." A defendant can also claim that the sexual activity was consensual. In a rape case, there can be significant questions about what constitutes consent or what constitutes refusal. This has led to the infamous question of when does "No" mean "No?" Does the word constitute a lack of consent as soon as it is spoken, or must the victim object more vigorously?

Another possible defense is an insanity plea, in which the defense argues that the accused is mentally ill and did not have the capacity to control his behavior, to form criminal intent, or to understand what he was doing or that his actions were unlawful.

Penalties: Imprisonment

Sexual assault laws regarding rape and criminal sexual penetration usually define this conduct as a felony with serious penalties. Many states have degrees of the crime, such as a rape in the first and second degree, depending on the vulnerability of the victim, the type of force used, whether the rape resulted in serious bodily injury, and whether it was committed with a deadly weapon, such as a rape at gun point.

Sentences for rape can range from one year to even life in prison, depending on the provisions of each state's sentencing statute or sentencing guidelines, the victim's age or status, and the circumstances of the crime. Some states require a minimum prison sentence or require the court to impose a prison sentence without probation or early parole. In other states, the judge may have some discretion on the length of the sentence and whether to allow the defendant to serve any portion of the sentence on probation rather than in prison.

Penalties: Treatment

A person convicted of a sex crime also will face penalties other than jail or prison. Sex offenders normally are required to undergo treatment either in jail or prison or as a condition of probation.

Penalties: Sexual Offender Registration

Every state in the U.S. has a sex offender registration and notification program. Sex offender registry statutes require that a person convicted of a sex offense register with the sex offender registry in the state where he resides. A sex offense requiring registration is any crime that includes sexual penetration or sexual contact as an element.

Registration as a sex offender requires a person to have his name, address, and information about his crime on file with the registry. Some or all of that information is available to the public, and every state has a sex offender web site that the public can search. Being placed on a sex offender registry will have serious and possibly life-long consequences to the registrant, making it difficult to find employment and housing.

Additional Information

Follow the links below to get more information concerning rape laws.

Legal Representation

A sex crime, particularly rape or criminal sexual penetration, is a very serious felony. Defendants face the possibility of a lengthy prison sentence and the stigma of being a convicted felon (and felons lose the ability to vote or own firearms). Being required to register is considered by many as the most onerous consequence, because the label "sex offender" has such a negative connotation in the public eye.

For these reasons, it's essential for defendants to secure competent counsel as soon as possible. An experienced criminal defense attorney will thoroughly investigate your case, aid you in asserting any possible defenses, and guide you through the criminal court process. Because sexual assault convictions result in sex offender registration, many of these cases plead to lesser offenses that do not require registration. Obtaining a good plea bargain, if that is the path you choose, will require the assistance of a professional who is familiar with the way cases like yours are handled by the prosecutors and judges in your courthouse.

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