§ 33.01 Rape: General Principles

§ 33.01 Rape: General Principles¹

[A] Definition: Common Law

Blackstone defined rape as "carnal knowledge of a woman forcibly and against her will."² "Carnal knowledge" was limited to sexual intercourse, that is, vaginal penetration by a penis.³ At common law, however, a husband who forced his wife to engage in sexual intercourse with him was not guilty of rape.⁴ Common law rape is a general-intent offense.

An ancient English felony statute prohibited sexual intercourse by a male with a "woman child" under the age of 10 years with or without her consent.⁵ This offense has come to be known today as "statutory rape," although it is a feature of the common law of the United States.⁶

[B] Statutes: Traditional and Reform

Modern American rape statutes vary considerably. In recent years, most legislatures have redrafted their rape statutes, often in recognition of, and agreement with, feminist and other critiques of the common law and early statutory definitions of rape.⁷

The Model Penal Code, which was adopted by the American Law Institute in 1962—well before modern scholarly and public criticism of rape law fully developed—has had little impact on rape law reform. Although the 1962 version of the Code's sexual offense provisions were progressive for their time, nearly all observers ultimately came to view the original provisions as relics that needed to be "pulled and replaced."⁸ And, indeed, the American Law Institute adopted new sexual offense provisions in 2021.⁹

Traditional (pre-reform) statutes primarily focused on forcible rape; that is, sexual intercourse achieved "forcibly," "against the will" of the female, and "without her consent." As is considered below,¹⁰ these terms—sometimes all contained in a single statute¹¹—are not necessarily synonymous. Moreover, traditional rape statutes are gender-specific: only males are legally capable of perpetrating the offense,¹² and only females legally can be victims of the crime.

Most states have reformed their sexual offense laws to some degree. Most states now prohibit various nonforcible forms of nonconsensual sexual intercourse. For example, sexual intercourse by a male with an unconscious or intoxicated female,¹³ or with someone over whom the actor has supervisory or disciplinary authority,¹⁴ or which is procured by certain forms of fraud,¹⁵ will constitute rape. And, increasingly, states have redefined the offense in gender-neutral terms in regard to both the perpetrator and the victim.¹⁶

In the most reformed versions of the law, the offense has been broadened to include all forms of sexual penetration (including nonconsensual oral and anal penetration); the name of the crime has been changed (e.g., "criminal sexual conduct" or "sexual assault"); the offense is divided into degrees; and the marital immunity rule—the common law rule that a husband could not legally rape his wife—has been narrowed or abolished.¹⁷ Some states now also criminalize nonconsensual sexual contact short of penetration.¹⁸

Perhaps the most significant issue still undergoing discussion is this: If the essence of the offense of rape is that the sexual activity has...