What Is Date Rape?

Most state laws do not use the term "rape" any longer but rather refer to the crime as "sexual assault," "sexual battery," or criminal sexual conduct. 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.

Rape or sexual assault doesn't always involve force or violence (although when an assailant physically overcomes the victim, that is rape). Rape can occur in other ways. The victim might refuse to give consent to sexual intercourse or be unable to give consent due to physical or mental infirmity.

A relationship between the victim and offender doesn't negate a crime. A person can be raped by an acquaintance, a friend, or even a relative. The mere fact that a victim knows his or her assailant is irrelevant to the legal definition of 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").

Date Rape or Acquaintance 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.

Unfortunately, the reference to date rape can lead to the misperception that the rape isn't a "true" rape (in other words, forcible). 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 time 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) might have a harder time convincing the police and a jury that rape occurred. Dress, behavior, consent to some sexual contact—all can 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.

Despite recent enlightenment jump-started by the Me Too movement, gender and sexual stereotypes persist in the minds of many. These people might be the judges and jurors who are asked to assess the credibility of the complaining witness. If they apply preconceptions about the victim's dress, behavior, and consent to limited sexual contact, they could discount the victim's claim of no consent.

Penalties for Rape

Most states consider rape or sexual assault a felony offense. Felonies are punishable by prison time ranging from one year to life imprisonment. The actual penalties will depend largely on the circumstances of the crime. Increased penalties could come into play if the victim was a minor, incapacitated (drugged or unconscious), developmentally or mentally disabled, or coerced by a person in authority (like a teacher, coach, therapist, or religious leader). In addition to prison time and fines, a person convicted of rape must register as a sex offender.

Defense to Date Rape

Where an individual charged with any crime of sexual assault 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 assailant 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.

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 (close to 99%). 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.

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.