Missouri is one of the few states that does not have a statute of limitation for rape, forcible rape and/or forcible sodomy. The Missouri statute of limitations for child sexual abuse is 3 years or before the age of 30. A person commits the crime of statutory rape in the first degree if he has sexual intercourse with another person who is less than fourteen years old. A person commits the crime of forcible rape if such person has sexual intercourse with another person by the use of forcible compulsion. Forcible compulsion includes the use of a substance administered without a victim's knowledge or consent which renders the victim physically or mentally impaired so as to be incapable of making an informed consent to sexual intercourse.
Common-law or forcible rape refers to sexual intercourse against one's will or consent. It may be committed by force or threat of force or injury to a person. A person committing forcible rape may be found guilty of two types of forcible rape. They are:
first-degree rape; and
second-degree rape
Commission of rape by forcible compulsion and inflicting serious physical injury together constitutes rape of first degree. A person committing forcible rape without inflicting any serious physical injury will be guilty of second degree rape.
Rape by force or threat is made a crime under the U.S. Federal statute[i]. It states that whoever knowingly causes another person to engage in a sexual act or attempt to do so; by using force against that other person shall be fined or imprisoned for any term of years or life, or both. Same punishment is provided in the statute if forcible rape is committed or attempted by threatening or placing that other person in fear that any person will be subjected to death or serious bodily injury or kidnapping.
Aggravated sexual abuse by any other means other than force or threat is punishable with fine or imprisonment for any term or life or both[ii]. This punishment would be given to anyone who knowingly;
make another person unconscious and engages in a sexual act with that person; or
administer to another person a drug or intoxicant by force or threat of force, or without the knowledge or permission of that person and thereby impairs the ability of that other person to control conduct; and engages in a sexual act with that other person.
Multiple penetrations of different openings in the body with different objects constitute deliberate cruelty. Penetrations with a sharp object are cruel beyond the act of rape and constitute physical injury[iii].
Common-law rape or forcible rape is different from a rape commonly called as statutory rape. Statutory rape is referred to sexual intercourse with a girl under the age of consent.
A person may be charged for forcible rape where such person compelled or mislead a victim and engaged in sexual intercourse. Also, a person may be guilty of forcible rape where such person had knowledge that a victim was mentally or physically capable of opposing the act.
Common-law rape may also include acts of forcible unnatural sexual intercourse that may include acts of oral sex. A person who commits such acts may be guilty of second degree rape[iv].Rape is not a specific intent crime at common law. Therefore proof of mental state is not required for a conviction of rape.[v].
[i] 18 USCS § 2241 (a).
[ii] 18 USCS § 2241 (b).
[iii] State v. Dull, 2004 Wash. App. LEXIS 471 (Wash. Ct. App. Mar. 22, 2004).
[iv] State v. Brown, 78 Wn. App. 891 (Wash. Ct. App. 1995).
[v] Id
Common-law or forcible rape is sexual intercourse against a person's will. Generally, the essential elements of a common-law or forcible rape are;
Sexual intercourse,
Force or threat, and
Lack of consent of the victim.
Acts amounting to sexual intercourse are held differently in different cases by the courts. A slight penetration of the female sex organ is sufficient to amount to a sexual intercourse in certain jurisdictions. A conviction for forcible rape may be granted even if there is no complete penetration or entry into a woman's vaginal canal. In the case of rape on young girls, rupture of hymen or tear of vagina is not necessary to convict a person for a crime of forcible rape.
It has been held that sexual intercourse included sexual contact between persons involving the sex organs of one person and the mouth or anus of another[i]. But, in certain states, penetration with a finger is not sufficient to constitute a penetration in order to convict on a charge of forcible rape.
Force is an essential element of a crime of forcible rape. It can be physical force or constructive force. In order to constitute force, putting physical restraints on a victim is sufficient in some jurisdictions. Non resistance from the part of victim due to fear may be taken as evidence of force by some courts. Threat of physical injury can be treated as force in an action on rape. Serious physical injury is an element for the crime of rape in a first degree rape[ii]. Presence or absence of forceful compulsion is to be determined from the perspective of a rape victim.
Generally, the determination of forcible rape is based on the degree of force employed and the extent to which the victim resists. In order to attract a conviction for forcible rape, force used must be more than that which is necessary for an act of sexual intercourse enabling the overcoming of a victim's capacity to resist. A person may not be convicted where the facts evidence that a victim did not offer physical resistance, and where there was no sufficient evidence of force to support a conviction[iii]. However it has also been held that requiring sufficient evidence to support force during rape was worthless because lack of resistance from victim was based on fear for her life, and belief that resistance would be useless[iv].
Various jurisdictions have held differently with regard to the necessity, manner, and extent of resistance by a victim. In some jurisdictions, it is not necessary for a victim to physically resist unwanted sexual advances. In a case where force is proved, the issue of whether a victim has consented or had a duty to resist is an issue for a trier of fact to determine. If a woman is conscious and has natural mental and physical powers, she must resist to the extent of her ability, depending on the circumstances[v]. A person cannot allege lack of resistance if such person knows that resistance is not to be expected due to the victim's physical disability.
Absence of consent is an essential element of forcible rape. Generally, in order to sustain a conviction for rape a state need to prove only that a victim did not consent to the sexual intercourse. Whether a victim consented or had a duty to resist is an issue to be determined considering the circumstances of a case by the trier of fact. The test for consent under a statute is whether a victim understands the nature and consequences of the proposed act. Forcible intercourse with an unconscious woman is considered to be without her consent and amounts to rape[vi].
The initial consent of a victim to sexual intercourse does not hinder a conviction of rape. A victim may withdraw consent during an act of sexual intercourse, and if forced to complete the act against the victim's will then forcible rape is said to be committed[vii]. Some other courts have observed that consent to sexual intercourse may be withdrawn at any time prior to penetration.
[i] State v. Brown, 78 Wn. App. 891 (Wash. Ct. App. 1995).
[ii] State v. Garnica, 2008 Wash. App. LEXIS 1530 (Wash. Ct. App. June 30, 2008).
[iii] United States v. King, 32 M.J. 558 (A.C.M.R. 1991).
[iv] United States v. Clark, 35 M.J. 432 (C.M.A. 1992).
[v] People v. Stuedemann, 156 Cal. App. 4th 1 (Cal. App. 4th Dist. 2007).
[vi] Brown v. State, 138 Ga. 814 (Ga. 1912).
[vii] In re John Z., 29 Cal. 4th 756 (Cal. 2003).
Rape is a form of sexual assault. Sexual assault is an assault of a sexual nature on another person. Under criminal law rape is defined as forcible sexual relations with a person against that person's will. "To the lay person, rape is generally construed to mean total consummation of the act of sexual intercourse, committed forcibly and with complete penetration"[i].
Rape is considered a crime against humanity and a war crime. Perpetrators of rape include: strangers, acquaintances, neighbors, superiors, legal entities or family members. Victim of a rape can be men or women. A woman can be convicted of raping a man, a man can be convicted of raping a man, and a woman can be convicted of raping another woman. Female abusers are usually seen as less culpable than male rapists by the courts.
The U. S. Code[ii] described the crime of rape under a more comprehensive term sexual abuse. Two types of sexual assault are defined in the code:
sexual abuse; and
aggravated sexual abuse.
Sexual abuse occurs when an individual is forced to engage in sexual activity by use of threats, other fear tactics, or instances in which an individual is physically unable to decline. Aggravated sexual abuse occurs when an individual is forced to submit to sexual acts by use of physical force, threats of death injury, kidnapping, or substances rendering an individual unconscious or impaired. Aggravated sexual abuse includes three types:
A person who knowingly causes another person to engage in a sexual act by using force against that other person, threatening or placing that other person in fear that any person will be subjected to death, serious bodily injury, kidnapping or attempts to do so, shall be fined and imprisoned for any term of years or life, or both.
A person who knowingly renders another person unconscious and thereby engages in a sexual act with that other person; administers to another person by force or threat of force or without the knowledge or permission of that person a drug, intoxicant, or other similar substance; thereby substantially impairs the ability of that other person to appraise or control conduct; and then engages in a sexual act with that other person or attempts to do so, shall be fined and imprisoned for any term of years or life, or both
A person knowingly engages in a sexual act with another person who has not attained the age of twelve years, or knowingly engages in a sexual act with another person who has attained the age of twelve years but has not attained the age of sixteen years (and is at least four years younger than the person so engaging), or attempts to do so, shall be fined and imprisoned for not less than 30 years or for life[iii].
Rape laws in the U. S . vary from state to state. Most states choose to label the crime of rape as sexual assault. All states define rape without reference to the sex of the victim and the perpetrator. In some jurisdictions the term used is criminal sexual conduct and in some other rape is defined as sexual penetration.
Generally, the offense of rape is:
forced sexual intercourse;
sexual intercourse against the victim's will and without his/ her consent;
sexual intercourse when the victim is mentally or physically incapacitated; and
sexual intercourse when the victim is under the age of consent
The absence of consent to sexual intercourse on the part of the victim is essential to constitute the offense of rape. Consent need not be expressed. Consent can be implied from the context and from the relationship of the parties. However, absence of objection does not of itself constitute consent. Moreover, duress leads to the presumption of lack of consent. When a victim lacks an actual capacity to give consent, valid consent is lacking. A child; and a person who has mental impairment, or development disability cannot give consent.
Sexual intercourse with a person below the age at which s/he cannot legally consent to such relations is known as statutory rape. Other types of rapes include: date rape, gang rape, marital rape, prison rape, acquaintance rape and war rape. The victim does not have to be penetrated to be raped. The perpetrator can use objects to stimulate the genitals. Moreover, rape is not always done for sexual satisfaction of the perpetrator. Other motives for rape include; blackmail, punishment, curiosity, money, and power.
Majority of rapes are committed by persons known to the victim. The initiation and process of a rape investigation depends the victim's willingness and ability to report and describe a rape. The legal requirements for reporting rape vary by jurisdiction.
In the U.S., rape is often called criminal sexual conduct in the first degree. First degree rape, the elements of which include engaging in sexual intercourse with a person by forcible compulsion and using or threatening to use a deadly weapon. The elements of second degree rape include sexual intercourse with another by forcible compulsion. Second degree rape, does not require the State to prove the use or threatened use of a deadly weapon[iv].
[i] Perez-Amaya v. Commonwealth, 2006 Va. App. LEXIS 569 (Va. Ct. App. Dec. 19, 2006).
[ii] 18 USCS § 2241.
[iii] Id.
[iv] State v. Brown, 127 Wn.2d 749, 754 (Wash. 1995).
Statutory rape refers to sexual intercourse with a girl who has not reached an age to give consent to sexual intercourse. This kind of rape is a statutory crime in most jurisdictions. Sexual intercourse may or may not be with the consent of the girl. The age cutoff of the victim prescribed by the statute may vary with regard to different jurisdictions.
The federal statute which makes sexual abuse of a minor or ward a crime states that whoever knowingly engages or attempts to engage in a sexual act with a person who has attained the age of 12 years but has not attained the age of 16 years; and is at least four years younger than the person so engaging shall be fined or imprisoned for not more than 15 years, or both[i].
Statutory rape is a strict liability crime. The criminality of conduct depends upon a child's being under the age stipulated by the statute. A person can not raise the defense of mistaken belief of the age of the child[ii].
Common-law rape and statutory rape are different crimes. The essential elements of both crimes are different. In statutory rape, age of the victim is an essential element whereas in common-law rape, force and consent are essential elements. But, the elements of force and consent may be present in a statutory rape even though they are not essential for a conviction.
A person may be found guilty for having sexual intercourse with a female between the ages of 13 and 18 without regard to the fact that she was married at the time of the act[iii]. It is due to the fact that a married minor prosecutrix could not consent to illicit sexual intercourse prohibited by statute[iv].
Legislation on statutory rape are made to protect children below a prescribed age from sexual intercourse. Children are prone to sexual exploitation due to their innocence and immaturity. They may not be aware of the consequences of engaging in sexual acts. Statutes make it a crime even if consent of a child is present in a statutory rape.
A defendant in a statutory rape case can not argue that the rape statute violates the equal protection clause because it subjects only males to criminal penalties[v]. A person may have a right to privacy and a right to engage in sexual activities with females but a rape statute does not violate such rights as it is intended to protect minor children from sexual exploitation.
[i] 18 USCS § 2243.
[ii] State v. Stokely, 842 S.W.2d 77 (Mo. 1992).
[iii] State v. Huntsman, 115 Utah 283 (Utah 1949).
[iv] People v. Caldwell, 255 Cal. App. 2d 229 (Cal. App. 2d Dist. 1967).
[v] Ferris v. Santa Clara County, 891 F.2d 715, 718 (9th Cir. Cal. 1989
