Rape Law in the United States

Rape has historically been treated as one of the most serious offenses in the criminal code. Until the Supreme Court’s decision in Coker v. Georgia, 433 U.S. 584 (1977), rape was punishable, and often punished, by death. The use of the death penalty for rape was a tool often used in the South to terrorize and “legally” lynch black men for the alleged rape of white women. The most famous such example is the so-called Scottsboro Boys case – although there was little evidence that any crime had been committed, eight teenage boys were tried in Alabama and sentenced to death for the rape of two white women on board a train. The last of these death sentences took decades to overturn.[1] This sorry racial history no doubt influenced the Court’s decision to strike down the death penalty for rape.

Traditionally, rape was defined as a crime of physical violence. For example, the Maryland statute discussed in the classic case of State v. Rusk, 289 Md. 230 (1981) defined the crime as follows:

A person is guilty of rape in the second degree if the person engages in vaginal intercourse with another person by force or threat of force against the will and without the consent of the other person.

That Maryland statute is typical of the traditional approach in its focus on physical indicia – in this case force or threat of force – to prove the presence or absence of consent on the part of the victim. Other states required a demonstration that the victim had resisted the sex act physically before that act could be deemed to be rape. For example, the California Penal Code long required either that the victim resist or that she was “prevented from resisting by threats of great and immediate bodily harm.” During this period sex without consent was not defined as rape, and often was not punished criminally at all, in the absence of proof of either force or resistance.

Over time, however, there was a growing recognition among both courts and legislatures that the harms of rape often have more to do with deprivation of the victim’s autonomy than with assault and battery. For the first time, the absence of consent alone was deemed sufficient to make intercourse criminal. Force and violence became aggravating factors rather than elements of the crime of rape. Rape, which originally was a single, very serious crime, splintered into several different offenses, with the punishments keyed to whether the defendant used force, whether a weapon was present, or whether serious injury resulted from the defendant’s conduct. Colorado law follows this approach. See CRS 18-3-402.

Typical of this trend toward recognizing non-consensual sex as criminal is the statute the New Jersey legislature passed in 1978 which focused exclusively on consent rather than force and resistance. As the New Jersey high court described the statute in State in Interest of MTS, 129 N.J.  422 (1992):

[A]ny act of sexual penetration engaged in by the defendant without the affirmative and freely-given permission of the victim to the specific act of penetration constitutes the offense of sexual assault. Therefore, physical force in excess of that inherent in the act of sexual penetration is not required for such penetration to be unlawful. The definition of "physical force" is satisfied … if the defendant applies any amount of force against another person in the absence of what a reasonable person would believe to be affirmative and freely-given permission to the act of sexual penetration.

As rape statutes such as this one came to emphasize consent rather than force or resistance, the mens rea of the defendant with regard to consent became more of a determining factor in rape prosecutions. When the state had been required to demonstrate that the defendant used physical force to overcome resistance, the defendant’s mens rea with regard to consent was rarely in doubt. When the question became solely or primarily whether the person with whom the defendant had sex had consented to that conduct, claims of mistake and ignorance became both more common and more salient, raising the question of what, if any, mens rea a defendant must have with regard to consent in order to be guilty of rape.

In MTS, the Court implicitly announced a negligence standard. A defendant is guilty of sexual assault under New Jersey law when he engages in sexual intercourse in the absence of what a reasonable person would believe is affirmative and freely given consent. In other words the mental state set forth by statute is the failure to perceive that the victim was not consenting when a reasonable person would have – the definition of negligence with regard to consent.

The majority of US jurisdictions today probably require recklessness with regard to consent, but some have imposed strict liability as is often imposed in sex offenses involving minors. For example, in Commonwealth v. Lopez, 433 Mass. 722 (2001) the Massachusetts Supreme Court held that:

A mistake of fact as to consent… has very little application to our rape statute. Because [the statute] does not require proof of a defendant's knowledge of the victim's lack of consent or intent to engage in nonconsensual intercourse as a material element of the offense, a mistake as to that consent cannot, therefore, negate a mental state required for commission of the prohibited conduct. Any perception (reasonable, honest, or otherwise) of the defendant as to the victim's consent is consequently not relevant to a rape prosecution.

The situation in Massachusetts is thus that one may be convicted of rape if he incorrectly, though reasonably, believes that the person with whom he had sex consented to that conduct. Of course, the jury must still find that the victim did not in fact consent, and in the absence of objective indicia of lack of consent, it might choose not to convict the defendant.

(Colorado is one of the few states to require knowledge with regard to lack of consent. See, e.g., CRS 18-3-402(1)(a) ("Any actor who knowingly inflicts sexual intrusion or sexual penetration on a victim commits sexual assault if: The actor causes sexual intrusion or sexual penetration knowing the victim does not consent;").)

Rape prosecutions often raise complicated questions of evidence and proof as well. As the focus moved away from force and resistance toward consent and mistake, defendants were left with little alternative than to show that the purported victim was a willing participant in the alleged acts or at least that it was reasonable for the defendant to believe that was true. Often, criminal defendants seek to rebut lack of consent by placing into evidence the victim’s past sexual behavior, whether with the defendant or with others. Although such evidence might be narrowly relevant under the traditional formulation of evidence law – whether the proffered fact makes it more likely that the victim consented on the occasion in question – such testimony is generally barred in a rape prosecution. Legislatures have generally decided that those alleging sexual assault should have their past sexual activity deemed inadmissible. Otherwise, the reasoning goes, fear of embarrassment or intimidation will prevent meritorious claims from being brought forward by victims. Relatedly, it is generally impermissible to introduce the defendant’s prior bad acts in order to prove that he acted in violation of the law on a later occasion. Thus, it is generally impermissible to introduce other allegations of sexual assault in a later prosecution for fear that the jury will judge the defendant based on his reputation rather than his conduct on a particular occasion.