Rape is defined by the U.S. Department of Justice as, “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” (DOJ, 2012). Sexual assault legal definitions have taken decades of work and advocacy to finally include victims and offenders of any gender identity, rape with an object, and to remove restrictions on definitions of consent. A victim can be unable to give consent because of being mental of physically incapacitated, which may the result of drugs or alcohol and may be temporary or permanent. Also, a victim who is considered a minor is legally incapable of giving consent. Finally, physical resistance is no longer required from the victim to prove lack of consent.

If you or anyone you know has been the victim of rape, please contact the National Sexual Assault Hotline at https://www.rainn.org/, by phone at 1-800-656-HOPE, or chat live through their website with a trained support specialist.

7.7.1 Degrees of Rape

Rape is charged according to degrees, much like murder and other crimes against persons. Each jurisdiction specifies their own very detailed factors that are used to determine the degree of the crime. The following examples are specific to the state of Oregon (Or. Rev. Stat. § 163.355; see id. § 163.305 (definitions)):

7.7.1.1 Rape in the First Degree

Engaging in sexual intercourse with another person who is:

• subjected to forcible compulsion by the assailant;
• under 12 years of age;
• under 16 years of age and is the person’s whole- or half-sibling, the person’s child, or the person’s spouse’s child; or
• is incapable of consent by reason of mental incapacitation, physical helplessness or incapability of appraising the nature of the victim’s conduct.

Rape in the second degree is engaging in sexual intercourse with another person who is under 14 years of age. Rape in the third degree is engaging in sexual intercourse with another person who is under 16 years of age. Note that forcible compulsion is first degree rape only. When forcible compulsion is involved, the degree cannot be lowered.

7.7.1.2 Other Sexual Assault Definitions

Using the same factors for identifying different degree levels as listed for rape, sodomy and unlawful sexual penetration use the same determinants:

• Sodomy is engaging in oral or anal sexual intercourse with another person or causing another person to engage in oral or anal sexual intercourse.
• Unlawful sexual penetration is penetration of the vagina, anus or penis of another with any object other than the penis or mouth of the assailant.

Sexual abuse in the first degree is subjecting another person to sexual contact and the victim is:

• Less than 14 years of age;
• Subjected to forcible compulsion by the assailant;
• Incapable of consent by reason of being mentally incapacitated, physically helpless or incapable of appraising the nature of the victim’s conduct.
• Also:  intentionally causing a person under 18 years of age to touch or contact the mouth, anus or sex organs of an animal for the purpose of arousing or gratifying the sexual desire of a person.

Sexual abuse in the second degree has the distinction of people over the age of 21 who are in the role of the victim’s coach. All sexual abuse degrees include the Romeo and Juliet clause that states if the victim’s lack of consent is because they are below the legal age of consent, a possible defense is that the assailant was less than 3 years older than the victim at the time of the offense. This protection is in place for teenage romances that do not meet the characteristics of sexual abuse or misconduct.

Additional guidelines are available for sexual misconduct, and custodial sexual misconduct in the first and second degrees (protecting people in corrections). Also, to read more on the specifics of each type and degree of rape, as well as the associated punishments, visit The Laws in Your State.

7.7.2 Consent

In most jurisdictions, the most important element required for rape is the victim’s lack of consent to the defendant’s act. Proving lack of consent has two components. First, the victim must be legally capable of giving consent. If the victim is under the age of consent or is mentally or intellectually impaired because of a permanent condition, intoxication, or drugs, lack of consent is automatic in many jurisdictions.

The second component to proving lack of consent is separating true consent from consent rendered involuntarily. Involuntary consent is present in two situations. First, if the victim consents to the defendant’s act because of fraud or trickery—for example, when the victim is unaware of the nature of the act of sexual intercourse—the consent is involuntary. A more common example of involuntary consent is when the victim consents to the defendant’s act because of force or threat of force. The prosecution generally proves this type of consent is involuntary by introducing evidence of the victim’s resistance.

Figure 7.10 The Components of Consent.

7.7.2.1 Proving Involuntary Consent by the Victim’s Resistance

Under the common law, the victim had to manifest extreme resistance to indicate lack of consent. In modern times, the victim does not have to fight back or otherwise endanger their life if it would be futile to do so. In most jurisdictions, the victim only needs to resist to the same extent as a reasonable person under similar circumstances. The use of force by the defendant could eliminate any requirement of victim resistance to prove lack of consent. If the defendant obtains consent using a threat of force, rather than actual force, the victim may not have to resist if they experience fear of serious bodily injury, and a reasonable person under similar circumstances would not resist. Threat of force can be accomplished by words, weapons, or gestures. It can also be present when there is a discrepancy in size or age between the offender and the victim or if the sexual encounter takes place in an isolated location. If the victim does not physically resist the criminal act, the prosecution must prove that the victim affirmatively indicated lack of consent in some other manner. This could be a verbal response, such as saying, “No.” In the most extreme case, at least one court has held that a verbal “No” during the act of sexual intercourse is sufficient, and the defendant who continues with sexual intercourse after being told “No” is committing the criminal act of rape (In re John Z., 29 Cal. 4th 756, 2003).

7.7.3 The Requirement of Corroborative Evidence

In early common law, a victim’s testimony was insufficient evidence to meet the burden of proving the elements of rape, including lack of consent. The victim’s testimony had to be supported by additional corroborative evidence. Modern jurisdictions have done away with the corroborative evidence requirement and allow other factors to determine the elements of rape or lack of consent based on the victim’s testimony alone (State v. Borthwick, 880 P.2d 1261, 1994). Although technically the victim’s testimony does not need to be corroborated, it is important that the victim promptly report the rape to the appropriate authorities and submit to testing and interrogation to preserve any and all forms of relevant rape evidence.