Sexual Assault and Rape Charges

The term sexual assault encompasses a wide range of sex offenses, involving forced or coerced sexual activity and the sexual abuse of minors. The crime of rape is a type of sexual assault, typically involving the sexual penetration of the victim.

Many jurisdictions have eliminated the word "rape" from their criminal laws, instead using the broader label of sexual assault or similar terms, like criminal sexual conduct or sexual

What is Rape

Rape originated as a common law offense that involved the forced sexual penetration of a non-consenting female victim by a male offender.

As rape statutes were passed by legislatures, the offense was broadened both to encompass a greater range of crimes, such as the sexual assault of male victims,

Statutes often also eliminated defenses that were deemed anachronistic, such as the requirement that a victim physically fight off the offender or to reflect the possibility of a marital rape.

Statutory Rape

The term "rape" is still broadly used to describe statutory rape, the term for sexual activity with a minor who is below the legal age of consent. However, even in the context of statutory rape, modern statutes often avoid using the word "rape".

Many jurisdictions have passed "Romeo and Juliet" laws that prevent prosecution for consensual sexual activity involving a minor when the persons involved in the sexual activity are close to each other in age.

Date Rape

The term "date rape" does not refer to a separate form of rape or sexual assault, but instead refers to the context in which the offense occurs.

Date Rape: In a date rape scenario, the victim is involved in a relationship with the defendant that involves romantic dating, or otherwise suggests a romantic or potential sexual relationship between the victim and defendant before the offense occurs.

Acquaintance Rape: A sexual assault between people who have a prior relationship, without regard to whether that relationship involved a romantic or sexual connection, may be referenced as "acquaintance rape".

The difference between a date rape prosecution and other sexual assault prosecutions usually focus on the issue of consent, not whether a sexual act occurred or whether the defendant was a participant in the sexual conduct that underlies the prosecution.

Rape in Modern Criminal Law

The concept of rape in modern criminal law is reflected in the U.S. Justice Department's present definition of the crime:

The penetration, no matter how slight, of the vagina or anus with any body part or object, or oral penetration by a sex organ of another person, without the consent of the victim.

Under that definition, the gender of the offender and victim are irrelevant, as is victim's marital status and, for the most part, the victim's sexual history.

Rape Shield Laws

In its earliest form, a successful prosecution of rape for an unmarried woman required that the prosecution prove that the victim was chaste, that is, that she had never engaged in sexual intercourse outside of a lawful marriage. Although that requirement was eliminated over time, many rape trials involved focusing on the victim's sexual history and personal character, with the defense suggesting that the victim was not a credible rape accuser due to that history.

Rape shield laws sharply limit the ability of the defense in a sexual assault case to introduce evidence of the victim's sexual history, in order to keep the focus of the trial on the facts of the case that is actually before the court

What is Sexual Assault

A sexual assault occurs when a person is forced or coerced to engage in sexual activity against his or her will, or when a person is the subject of unwanted sexual contact.

Lack of Consent

A key element of a sexual assault charge is that the victim did not consent to the sexual contact or activity that is alleged to have constituted the sex offense.

In most cases, lack of consent is alleged based upon the defendant's use of violence, force, or some other form of coercion. However, lack of consent may also be established in other ways, such as proof of legal incapacity, or proof that consent was obtained by fraud.

If the victim is below the age of consent for the sexual activity underlying the charge, it is not necessary for the prosecution to further prove a lack of consent. For example, no matter what the victim says or does, a sexual assault charge where the victim is below the age of consent is legally non-consensual.

Similarly, charges such as using a minor in a sexual performance or in pornography are unlawful based upon the minor's age, without regard to whether or not the minor nominally consented to participate.

In addition to age, states may recognize circumstances in which a victim is deemed legally incapable of consenting to sexual conduct. For example:

  • A person may be deemed too incapacitated as a result of intoxication to give consent.
  • A person might otherwise be deemed incapable of giving consent due to another form of mental or developmental disease or incapacity.
  • It may be unnecessary to prove consent if the victim is a person who was physically helpless at the time of the sexual contact.
  • The law may hold consent to be irrelevant where the defendant holds a position of authority over the victim.

In order to address the coercion and influence that may result from authority,

  • Many states make it illegal for public school teachers to have sexual relationships with students who attend their schools, even when the students are of legal age.
  • States routinely criminalize sexual activity between prison or jail guards and inmates.
  • Many states have passed laws that forbid sexual activity between other vulnerable populations and their caregivers, such as within the context of a group home or nursing home.

Consent to sexual activity must be given knowingly. It thus may be possible to prosecute a defendant based upon sexual contact that was superficially consensual, but where the consent was obtained as a result of fraud or trickery.

For example, a doctor (or person pretending to be a doctor) may make sexual contact with a victim that the victim believes is part of a medical examination or treatment, but that is later found to have been for the doctor's own sexual gratification.

Sexual Activity

Most sexual assault charges involve direct physical contact between the defendant and the victim. However, even though no direct contact occurs, there are other circumstances in which sexual acts may support a criminal conviction. For example, a victim may be coerced into engaging in a sexual performance, either alone or with somebody other than the defendant.

For some forms of sexual assault, it is necessary for the prosecution to prove that the defendant engaged in activity or made contact with the victim in a manner that can reasonably be construed as being for the purpose of sexual arousal or gratification. The reason for that requirement is to avoid criminalizing unintentional conduct, or contact that was intentional and potentially prosecutable as a battery, but that was not sexual in nature.

Defenses to Sexual Assault

There are two primary defenses to a sexual assault charge:


The defendant may claim to be innocent of the charge. For example, the defendant may take the position that the alleged sexual activity never occurred, or that it may have occurred but that somebody else committed the offense.

When available, physical evidence collected from the crime scene and victim, particularly DNA evidence, can provide compelling evidence of who committed an alleged sexual assault.


The defendant may admit to engaging in sexual conduct with the victim, but claim that consent was given or that, under the circumstances, it was reasonable to believe that consent had been given.

Consent is not always available as a defense. For example,

  • All states prohibit sexual acts that involve younger minors even if the minor nominally consents to the sexual activity.
  • Many states criminalize sexual activity between people in authority and those over whom they have authority, such as between K-12 school teachers and minor students who attend their schools, or between prison employees and inmates.
  • If it is proved that the victim was incapable of consenting as the result of intoxication from the use of alcohol or drugs, or by virtue of other physical or mental incapacity, the defense of consent is generally unavailable.

Diminished Capacity

It may also be possible for a defendant to present a diminished capacity (insanity) defense, although in most states that requires that the defendant admit that the crime occurred, and with the defense having a very low probability of success.

Copyright © 2017 Aaron Larson, All rights reserved. No portion of this article may be reproduced without the express written permission of the copyright holder. If you use a quotation, excerpt or paraphrase of this article, except as otherwise authorized in writing by the author of the article you must cite this article as a source for your work and include a link back to the original article from any online materials that incorporate or are derived from the content of this article.

This article was last reviewed or amended on May 7, 2018.