Can someone be convicted of raping a person if they had consensual sex in the past?

Despite past consensual sexual relations, a person can be convicted of rape for a particular incident. When physical evidence is scarce, the evidence comes down to which side is more believable.

By , Attorney · New Mexico School of Law

It is possible to commit the crime of rape against someone with whom you have previously had consensual sex. It is even possible for a sexual encounter to begin as consensual and become an act of rape.

When Does Consensual Sex Become Rape?

The crime of rape consists of committing a sexual act (usually defined as some form of penetration) without the other person's consent or against the person's will. Having sexual intercourse with a woman who is passed out or unconscious can be rape because the woman has not consented to the sexual act and does not have the capacity to consent to it. Having sexual intercourse with or forcing sex on a woman who is objecting or saying "no" is rape because it is against her will. Grabbing a person and forcing sexual penetration of any kind also is rape because the action, again, is committed without the person's consent.

If two people are dating or previously have had consensual sex for any reason, the consent to prior sexual acts does not extend to future occasions. In other words, each time two people become sexually active, each person must consent and be a willing participant. If you have consensual sex with a person on Friday night and want to have sex again on Saturday, you must have the person's consent again on Saturday. If the other person says "no" on Saturday and you force yourself on her or him, the act could constitute the crime of rape. Also, if you begin a consensual sexual encounter with someone, perhaps kissing and petting, but the other person stops the encounter, any sexual act from that point forward is not consensual. If the person who wants to continue presses forward and intercourse occurs, that person could be found guilty of rape even though the encounter began as consensual.

Criminal Charges for Rape

If a person is charged with raping someone with whom he has had consensual sex in the past, the central issue in the case is whether the sexual act was consensual. The prosecutor must prove beyond a reasonable doubt that the defendant committed the act of sexual penetration without consent or against the other person's will. This often can mean that the trial is a "he said, she said" case because the two people involved may be the only witnesses and there may be little other evidence.

Investigation and evidence

The prosecutor may charge the defendant with rape based on the victim's testimony that she did not consent to sexual intercourse or that the defendant forced her to comply. The police usually will look for witnesses who might have seen the couple interacting at the time of or just before the incident. Unfortunately, finding witnesses may be difficult because sexual encounters often occur in private. And even if someone saw the couple shortly before the incident, the encounter may have begun consensually and changed after the witness was no longer present.

The prosecution also will look for physical evidence, such as signs of physical force. If the incident involved violence, the victim may have visible bruises, cuts, or other injuries that can be photographed. A doctor or hospital also can conduct a genital and vaginal examination and prepare a rape kit. The person who conducts the exam will look for evidence of hair, bodily fluids, and trauma. Evidence of trauma can include tearing, bruising or scratches in the vaginal or genital area. The prosecution will argue that evidence of such trauma indicates the sex was forced or non-consensual. The defense can argue, however, that the trauma occurred because the sex was intense or aggressive by consent.

Other evidence that the prosecution can present to establish that a sexual encounter was not consensual can include:

  • text messages or other communication between the two people about the encounter or their relationship
  • photographs or video tapes of the incident or events related to the incident, and
  • photographs or physical evidence from the location of the incident that show a struggle occurred or the defendant broke into the location, such as photos of a room in disarray with overturned furniture or damage to a window, door, or lock.

Testimony at trial

At trial, the victim's testimony and credibility will be extremely important, especially if other evidence is limited. Credibility refers to whether the witness is believable and seems to be telling the truth. If the defendant chooses to testify, his credibility also will be very important.

If both the victim and the defendant testify, each person will describe the events and likely will be permitted to testify as to what the other person said during the incident. The two descriptions of the event might be very different. The victim might testify that she said "no" and told the defendant to stop repeatedly and even tried to get away but was held down. The defendant might testify that the other person never said "no" and did not object at any point. In another case, the two descriptions of the incident might be very similar and it might be much less clear whether the victim said "no" or objected.

Trying to reach a verdict in this type of case can be particularly difficult for a jury because both parties might seem credible. The jury may have to decide whether the defendant actually knew that the victim was not consenting based on a fuzzy situation where the two people were not communicating clearly with each other, perhaps using body language subject to interpretation rather than words. Ultimately, the jury must decide whether all the evidence presented proves beyond a reasonable doubt that the defendant committed the sexual act even though he actually knew the victim was not consenting.

The Importance of Legal Representation

Sex crimes are very serious. You can be convicted of a felony, sentenced to time in prison, and be required to register as a sex offender for the rest of your life. Given these possible consequences, if you are charged with a sex crime, you should seek the advice of an attorney immediately. An experienced attorney who knows the law in your state and is familiar with the local court system can advise you of your rights and how to proceed in your situation and can represent you in court.

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