The rapist does not have to use physical force; threats of harm are sufficient. In most enlightened states, the victim does not have to resist the rapist physically, especially where any resistance would be futile and might subject her to more danger. For example, if a rapist wields a knife in front of his victim, telling her that he will slit her throat if she does not cooperate, the woman does not have to attempt to struggle with the rapist. To do so could well mean her death.
Is it rape even if the assailant does not reach climax? Yes. The crime of rape is committed as soon as there is any penetration of the woman’s vagina by the man’s penis. Inserting a foreign object into the woman’s vagina is “rape by artifice.” “Sodomy” is a broad crime covering any forced sexual act that is deemed unnatural, including anal or oral copulation.
Suppose an impotent man is accused of rape. Can he be convicted of that crime? The old rule was that if he can prove his impotency he would be physically incapable of rape and therefore innocent. But with the development of Viagra and various pumps, previously impotent men are now capable of getting an erection. To prove whether the claimed impotent man was guilty of rape can be proved or disproved by DNA testing. But if the man is truly impotent, then he cannot be convicted of rape. In some states, however, he can be convicted of attempted rape. But those states that require the actual ability to commit the crime as an element of an attempt, he could not be guilty of an attempted rape. But he could be guilty of assault, battery, and false imprisonment.
Historically, a married man could not be found guilty of raping his wife, although he could be guilty of some other crime, such as assault or battery. Today, however, most states have laws that make it rape for a married man to force himself upon his wife when she refuses to engage in sexual relations.
Statutory rape is sexual intercourse with a female under a certain age, usually 14 to 18 years old, depending on the state. A girl under the statutory age is deemed legally incapable of consenting to sexual intercourse because of her immature years. It therefore won’t help the man to claim that the girl consent to the act. Suppose a man sees a young woman drinking in a bar and naturally assumes that she is at least 21, the legal drinking age. If two of them have sexual intercourse, but it turns out the girl is only 17 (and the state, the age for statutory rape is 18), and the man is prosecuted later for statutory rape, he can claim that he was honestly mistaken about the girl’s age; that he naturally assumed she must have been at least 21 since she was drinking in a bar? At one time, the only defense permitted was that the man was married to the underage girl at the time of the otherwise unlawful intercourse. Mistakes—even honest and sincere ones—were not taken into consideration. Today, however, some states do permit the man to prove that he was honestly mistaken about the girls age if the girl intentionally misled him about her age was reasonable under the circumstances.
Allaye Chan Law
1000 G Street, Suite 220
Sacramento, CA 95814