Originally at common law, rape referred to unlawful sexual intercourse by a man with a woman who was not his wife, through force and against her will. Under this definition, marriage was an automatic defense to rape, as a husband could not be convicted of raping his wife. In modern times, the definition of rape has broadened considerably to include the recognition of marital rape and to make gender (of both the perpetrator and the victim) irrelevant.
Model Penal Code
Under the Model Penal Code § 213.1, a male who has sexual intercourse with a female not his wife is guilty of rape if:
(a) he compels her to submit by force or by threat of imminent death, serious bodily injury, extreme pain or kidnapping, to be inflicted on anyone; or
(b) he has substantially impaired her power to appraise or control her conduct by administering or employing without her knowledge drugs, intoxicants or other means for the purpose of preventing resistance; or
(c) the female is unconscious; or
(d) the female is less than 10 years old.
Rape is usually a felony in the second degree. However, if the perpetrator inflicts serious bodily injury upon anyone, or if the victim was not a voluntary social companion of the actor upon the occasion of the crime and had not previously permitted him sexual liberties, the rape is categorized as a felony in the first degree. The same section (213.1) also addresses the lesser offense of gross sexual imposition.
Variation by Jurisdiction
The New York Penal Code separates the crime of rape into three degrees. Rape in the first degree is when a person engages in sexual intercourse with another person by force, or who is incapable of consent by reason of being physically helpless; or who is less than eleven years old; or who is less than thirteen years old and the actor is eighteen years old or more. Rape in the first degree is a class B felony. Rape in the second degree is when a person is 18 years old or more and he or she has sexual intercourse with another person less than 15 years old (see Statutory Rape), or a person engages in sexual intercourse with another who is incapable of consent due to a mental disability. An individual has an affirmative defense to the crime of rape in the second degree if he or she was less than four years older than the victim at the time of the act. Rape in the second degree is a class D felony. A person is guilty of rape in the third degree when: he or she engages in sexual intercourse with another who is incapable of consent by reason of some factor other than being less than seventeen years old; is twenty-one years old or more and engages in sexual intercourse with another person less than seventeen years old; or engages in sexual intercourse with another without such person's consent where such lack of consent is by reason of some factor other than incapacity to consent. Rape in the third degree is a class E felony.
Section 303.3 of the Maryland Criminal Code states that a person may not engage in vaginal intercourse with another by force, or the threat of force, without the consent of the other. If the person employs or displays a dangerous weapon, inflicts serious injury on the victim, threatens to inflict serious injury on the victim, or commits the act in connection with a burglary, this offense is categorized as rape in the first degree and is subject to imprisonment not exceeding a life sentence. However, if a person engages in vaginal intercourse with another by force, or the threat of force, without the consent of the other; or if the victim is a mentally defective or a physically helpless individual, and the person performing the act knows or reasonably should know that the victim is a mentally defective individual, a mentally incapacitated individual, or a physically helpless individual; or if the victim is under the age of 14 years, and the person performing the act is at least 4 years older than the victim, then this offense is categorized as rape in the second degree. The perpetrator of such a crime is subject to imprisonment not exceeding 20 years.
A common defense to rape is that the person consented to the sexual intercourse. Intoxication is generally not a defense to a rape charge. It may, however, be a defense to rape if it produces a mental condition of insanity (though this is an extremely rare occurrence). Furthermore, the reputation of the victim (i.e. previous unchaste character) is not a defense. The fact that the defendant may not be able to complete the act of rape does not negate a charge of assault with the intent to commit rape, but it may speak to the accused's intent.
The German Criminal Code section 177 covers sexual assault and rape. It states that:
(1) Whosoever coerces another person by force;by threat of imminent danger to life or limb; orby exploiting a situation in which the victim is unprotected and at the mercy of the offender, to suffer sexual acts by the offender or a third person on their own person or to engage actively in sexual activity with the offender or a third person, shall be liable to imprisonment of not less than one year.
(2) In especially serious cases the penalty shall be imprisonment of not less than two years. An especially serious case typically occurs if the offender performs sexual intercourse with the victim or performs similar sexual acts with the victim, or allows them to be performed on himself by the victim, especially if they degrade the victim or if they entail penetration of the body (rape); orthe offence is committed jointly by more than one person.
(3) The penalty shall be imprisonment of not less than three years if the offender carries a weapon or another dangerous instrument;otherwise carries an instrument or other means for the purpose of preventing or overcoming the resistance of another person through force or threat of force; orby the offence places the victim in danger of serious injury.
(4) The penalty shall be imprisonment of not less than five years if the offender uses a weapon or another dangerous instrument during the commission of the offence; or ifthe offender(a)seriously physically abuses the victim during the offence; or(b)by the offence places the victim in danger of death.
(5) In less serious cases under subsection (1) above the penalty shall be imprisonment from six months to five years, in less serious cases under subsections (3) and (4) above imprisonment from one to ten years.
Section 139 of the Kenyan Criminal Code defines "rape" as the "unlawful carnal knowledge of a woman or girl, without her consent, or with her consent if the consent is obtained by force or by means of threats or intimidation of any kind, or by fear of bodily harm, or by means of false representations as to the nature of the act, or, in the case of a married woman, by personating her husband." Rape is a felony in Kenya and is punishable by imprisonment for life, with or without corporeal punishment.
- Black's Law Dictionary, 9th edition (2009)
- Model Penal Code, § 213.1 (2001)
- New York Penal Code § 130.35 (2009)
- New York Penal Code §130.30 (2009)
- New York Penal Code § 130.25 (2009)
- Maryland Criminal Code § 3-304 (2002
- Stephen Lease, Assault with Intent to Rape and Related Offenses, Corpus Juris Secundum (2010)
- Stephanie A. Giggetts, Rape Defenses: Intoxication, American Jurisprudence, Second Edition (2010)
- Stephen Lease, Rape- Corpus Juris Secundum, Dec. 2010