Legal Definition of Rape

This is the California Rape Law. Many states have similar laws, but check with your local police or district attorney to see what the law is in your state.

Reasonable Belief in Consent

Even where the accused uses force, the intercourse may not constitute rape. If, under the circumstances, the accused could reasonably have believed the victim was consenting, there is no forcible rape. This is unlikely when any significant force is used.

It is possible to have a case where the victim submits from fear, but the accused believes the victim consented. This can occur where the parties read "the signals" quite differently. Whether there is rape depends on whether the jury finds that a person in the accused's circumstances could "reasonably" have believed the other party consented. (e.g., Wm. Kennedy Smith trial)

Attempted Rape or Assault with Intent to Rape

When there is no sexual penetration, there is no rape; but there may be attempted rape or an assault with an intent to rape. Unlike rape, attempt or assault with intent are what the law calls "specific intent" crimes. This means that in order to find an accused guilty, the prosecutor must show the accused intended to have intercourse by force or threat of injury and against the will of the victim. Even if the accused unreasonably believes the victim is consenting, the accused does not have the intent necessary for the crime.

Statutory Definitions

Rape is an act of sexual intercourse carried out:

1. "against a person's will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the person or another."
2. where the victim is unable to resist because of an intoxicating, narcotic, or anesthetic substance that the accused has responsibility for administering.
3. where the victim is unconscious of the nature of the act and the perpetrator knows it.
4. where the victim believes, due to the perpetrator's intentional deceptive acts, that the perpetrator is her spouse.
5. where the perpetrator threatens to retaliate against the victim or any other person, and there is a reasonable possibility the perpetrator will execute the threat -- "threatens to retaliate" means threatens to kidnap, imprison, inflict extreme pain, serious bodily injury, or death.
6. where the victim is incapable of giving consent, and the perpetrator reasonably should know this.
7. where the perpetrator threatens to use public authority to imprison, arrest, or deport the victim or another, and the victim reasonably believes the perpetrator is a public official.

Consent

- Non-consented sexual intercourse is not necessarily rape in California. Where the victim is capable of consenting, but does not consent, and the perpetrator does not use force, violence, duress, menace, or induce in the victim a fear of "immediate and unlawful bodily injury," the intercourse does not constitute rape.

- Consent is a defense to a charge of forcible rape. In sex crime cases, California defines consent as "positive cooperation in act or attitude pursuant to an exercise of free will. "

- An accused's reasonable belief that the victim was consenting to an act of sexual intercourse is a defense to a charge of forcible rape.

- A person can commit forcible rape negligently. If the accused did not, but should have, realized that the victim was not consenting, but was submitting because of a perception of force or threat of injury, the accused is guilty of rape.

Resistance and Consent

- At common law, there was a requirement that to establish rape, the prosecution had to show that the victim resisted. California has abolished the resistance requirement as it placed victims in danger.

- While the law does not require proof of resistance, the lack of resistance is a fact that a jury can take into account in deciding whether the accused reasonably believed the intercourse was consensual.

- In most cases, where the accused uses force, violence, etc., or threat of immediate bodily injury, lack of resistance will not matter. Where there is no force, etc., or threat of injury, it may matter.

UNLAWFUL INTERCOURSE

Where a perpetrator, intending to induce a victim into fearing physical injury or death for herself or a relative, obtains consent through a false or fraudulent representation, he commits the crime of unlawful sexual intercourse. The representation must be such as would cause a reasonable person in like circumstances to consent.

EVIDENTIARY AND OTHER RULES

• Corroboration rule abolished.
• Cautionary instructions abolished.
• Psychiatric examinations of complaining witness not generally allowed.
• In general evidence of the complaining witness's prior sexual conduct is not admissible.

Exceptions:

• prior sexual contact with the defendant
• as rebuttal evidence if the prosecutor introduces such evidence
• where relevant to attack the credibility of the complaining witness (strict procedure, hearing out of presence of the jury, special findings required) -- prior sexual conduct generally is not relevant to the issue of whether the witness is to be believed, but in certain special cases it may be, e.g.., where the defense makes a creditable showing she has a reason to lie and that reason relates to her prior sexual conduct.

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