rape (law) | Definition

Doc's CJ Glossary by Adam J. McKee


Course: Introduction / Criminal Law

Under common law, rape was defined as intercourse by a man against a woman who is not his wife by force or threat and against her will.

Under common law, rape was defined as unlawful sexual intercourse by a man with a woman, not his wife, by force or threat and against her will. This definition was narrow and limited because it only recognized male-female relationships and did not consider rape within marital relationships or same-sex relationships. The requirement for force or threat also made it difficult to prosecute many cases of sexual assault, especially when there was no physical evidence of resistance.

In recent years, many states have expanded the definition of rape to include non-consensual sexual acts and have eliminated the requirement for force or threat. In 2012, the FBI also revised its definition of rape to include any non-consensual sexual act, regardless of gender or relationship status.

The Model Penal Code, which provides guidance for criminal law reform in the United States, defines rape as sexual intercourse without the victim’s consent. It also recognizes that a victim may be incapable of giving consent due to various factors such as age, mental incapacity, or intoxication.

The issue of consent is crucial in the modern definition of rape. Consent must be freely given and informed, and the absence of a “no” does not necessarily imply consent. Consent cannot be obtained through coercion, manipulation, or threat. The presence of consent is also an essential element in distinguishing rape from other sexual acts.

Another issue that has been brought to light in recent years is the prevalence of rape within marital relationships. Many states have eliminated the marital rape exception, which previously stated that a husband could not be charged with raping his wife. In such cases, the focus is on whether or not consent was given, regardless of the relationship between the parties.

Under the Model Penal Code, there are several forms of rape, including sexual intercourse by force or coercion, sexual intercourse with a person who is unconscious or incapable of giving consent, and sexual intercourse with a person under a certain age or who is otherwise unable to give legal consent.

Additionally, the MPC recognizes that men can also be victims of rape. These definitions aim to broaden the scope of what constitutes rape beyond the traditional common law definition, which was limited to non-consensual sexual intercourse between a man and a woman. The MPC also takes into account the victim’s lack of consent, regardless of whether or not force or threat was involved. Overall, the MPC’s expanded definition of rape aims to better protect individuals from sexual assault and ensure that perpetrators are held accountable for their actions.

The crime of rape is a serious offense that carries severe legal and social consequences. Victims of rape often suffer from physical and psychological trauma and may experience long-term effects such as depression, anxiety, and post-traumatic stress disorder. The criminal justice system has been criticized for not adequately addressing the issue of rape and for re-victimizing survivors through insensitive treatment during investigations and trials.

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Last Modified: 04/10/2023


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