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Common Law Rape:
A male engaging in forcible sexual intercourse with a female not his wife, without her consent.

Modern Definition of Rape:
The crime of forcing another person to submit to sex acts.

At common law, rape was defined as forcible sexual intercourse with a female person without her consent. Because rape at common law had to be unlawful sexual intercourse, a husband could not be convicted of raping his wife. However, some modern statutes have defined rape in such a way that it can now be committed, in certain circumstances, by a husband against his wife. Many modern statutes retain the common law principal that a man cannot rape his wife, although of course, in such a scenario, assault and battery charges may be appropriate.

Further, although the common law defines rape as involving sexual intercourse, the act was considered completed upon even the slightest penetration of the female genitalia. Full penetration by the male was not required in order to obtain a conviction and neither was emission. See De Armond v. State, 285 P.2d 236 (Okla. 1955).

The difficult element in determining whether a rape has been committed is determining whether or not consent has been given. Intercourse that is committed where the male forces himself on the female is obviously committed without consent. Further, in situations where the woman does consent but the consent is given as a result of the male putting her in apprehension of imminent harm, the consent is considered ineffective and the sexual intercourse will be considered rape. Additionally, in situations where the female is legally incapable of giving consent because of a mental deficiency or intoxication or other such condition that renders her legally incapable, her consent will be ineffective and the intercourse will be considered rape.

Under certain circumstances, consent obtained by fraud will be considered ineffective and the intercourse will be considered rape.

First, if the defendant tricks the victim into thinking that the act is something other than intercourse, the consent will be ineffective. So, for example, if a doctor tells a female patient that it will be necessary to insert an instrument into her genitalia as part of an examination and, after she consents to the examination, he has sexual intercourse with her, her consent will be considered ineffective and the doctor can be convicted of rape. These situations, where the defendant tricks the victim into thinking that the act is something other than sexual intercourse, is referred to as fraud in the factum.

However, if the defendant does not trick the victim as to the nature of the act but lies to her as the medical value of the act, he cannot be convicted of rape. So, for example, if the doctor tells a female patient that it is medically beneficial for her to lose her virginity and the patient consents to the doctor having sexual intercourse with her, the doctor will not be convicted of rape even if the reasons he gave the patient as to the medical necessity of the intercourse are fraudulent. Situations where the defendant is straightforward with the victim as to the nature of the act, but lies about the necessity of the act, are called fraud in the inducement.

If the defendant obtains consent from a woman to have sexual intercourse with her after tricking her into believing that they are married, there is a split of authority as to whether or not this constitutes rape. Some courts hold that this is not rape because here has been no fraud in the factum. That is to say, the victim has not been tricked as to the nature of the act. However, other courts do consider this kind of fraud closely enough related to the nature of the act so that the intercourse can be considered rape. For example:

Joe has been dating Marilyn for a year. Marilyn, who is determined to be a virgin on her wedding night, continually rebuffs Joe’s sexual advances. Joe has a good friend named Mickey who Marilyn does not know. Joe and Mickey hatch a plot where Joe will propose to Marilyn and Mickey will dress up as a priest and pretend to marry them. Joe does propose to Marilyn who happily accepts and, the next day, they appear before Mickey who willingly conducts a “marriage” ceremony. In this situation, Marilyn thinks that she is now married to Joe although, in fact, the wedding is not valid. If Joe then has sexual intercourse with Marilyn, some courts will not consider it rape although other courts will.

However, if the defendant tricked the victim in regard to his identity and the trickery does not involve a marriage relationship, this type of fraud will not render the intercourse rape. For example:

Joe and his fiance Marilyn and Jack and his fiance Jackie decide to go away for the weekend together. They rent a small cabin by a lake where they plan to spend the weekend hiking and fishing. Joe and Marilyn are occupying one room in the cabin, and Jack and Jackie are occupying the other. One night, Jack decides to do some night fishing. While he is away, Joe sneaks into his room and, under cover of darkness, pretends to be Jack. Joe and Jackie then proceed to engage in sexual intercourse. In this case, Joe’s trickery was with regard to his identity. Therefore, since it does not involve a marital relationship, the sexual intercourse that he has with Jackie is not considered rape.

As for the mens rea required for rape, the defendant must act with the intent of having sexual intercourse with a woman against her will. The major issue is whether or not the defendant can be convicted of rape if he did not know that the act was being committed against the woman’s will. The general rule is that a mistake of fact will protect the defendant from a conviction if it eliminates the intent that is required for the crime. Several jurisdictions now hold that a mistaken belief of consent will protect the defendant from a conviction only if the defendant honestly and in good faith believed that the woman consented and the defendant’s mistaken understanding must be one that a reasonable person would have made. See Tyson v. State, 619 N.E.2d 276 (Ind. 1993). If the defendant’s mistake was unreasonable, the fact that he made the mistake will not protect him from a rape conviction even if he honestly and in good faith believed that the woman consented.

Aside from mistake, the common law does provide for a special age defense which says that a boy under the age of fourteen is incapable, as a matter of law, of committing rape. See State v. Rogers, 168 S.E.2d 345 (N.C. 1969). However, some jurisdictions have modified the special age defense and made it a rebuttable presumption. In those jurisdictions, a child under the age of fourteen who is accused of rape has the rebuttable presumption that he was incapable of committing the rape. However, the prosecution can still obtain a conviction if it brings enough evidence to prove beyond a reasonable doubt that the child did, in fact, commit the crime. Many jurisdictions have done away with the special age defense altogether.

Intercourse with a woman who is under the age of consent falls under the special category of statutory rape and it is a crime regardless of whether or not the girl consented. Further, statutory rape is a strict liability crime. That means that there is no mens rea required for the commission of statutory rape. Therefore, a defendant can be convicted even if he did not know that the girl was underage and even if he reasonably mistook the girl for being over the age of consent. The age of consent varies from state to state.

Some states do allow the defendant to avoid being convicted by proving that there is a very small age difference between himself and the victim. That is to say, if the defendant is accused of statutory rape for having sexual intercourse with a fourteen-year-old girl, he can avoid a conviction by showing that he is only a few months older than her. The reason that this defense is allowed is because the crime of statutory rape is meant to prevent older people, who may wield undue influence over younger people, from taking advantage, especially sexually, of younger people. Where the defendant is very close in age to the victim, this is not a concern and, therefore, the law has incorporated this leniency into the statutory rape laws.

Many modern statutes have replaced the common law crime of rape with a new offense called sexual assault. The biggest difference between the common law crime of rape and the more modern crime of sexual assault is that, where the common law crime of rape was defined as sexual intercourse with a woman against her will or without her consent, the modern crime of sexual assault is gender neutral so that both men and women can be the victim of sexual assaults. Further, unlike the crime of common law rape which only outlawed the traditional act of sexual intercourse against a woman’s will, the modern statutes of sexual assault are expanded to cover other kinds of non-consensual sex acts as well.