Other crimes - Rape; statutory rape

Learning Outcomes

This article provides a focused review of rape and statutory rape for the Multistate Bar Exam (MBE), including:

• Explaining the elements of common law rape—unlawful intercourse, lack of effective consent, and force or threat of force—and comparing them with modern, gender-neutral sexual assault statutes.
• Distinguishing valid, effective consent from ineffective consent based on force, threats, incapacity, intoxication, or fraud in the factum, and contrasting these with fraud in the inducement, which usually does not negate consent.
• Describing the traditional marital immunity rule, its theoretical basis, and the modern trend of abolishing or strictly limiting it on the MBE.
• Defining statutory rape, emphasizing the age-of-consent element, close-in-age or “Romeo and Juliet” exceptions when expressly provided, and the usual strict liability treatment of the victim’s age.
• Analyzing exam-tested defenses and non-defenses, including mistake of fact about consent in forcible rape, mistake of age in statutory rape, and the limited role of voluntary intoxication.
• Practicing structured issue-spotting to differentiate forcible rape from statutory rape and related sexual offenses in multiple-choice MBE questions.

MBE Syllabus

For the MBE, you are required to understand crimes against the person, including rape and statutory rape, with a focus on the following syllabus points:

• Identify the elements of common law rape, including the requirements of unlawful sexual intercourse, lack of consent, and the use of force or threat of force.
• Recognize how modern statutes have altered common law rape, particularly regarding gender neutrality, definitions of consent, and resistance requirements.
• Define the elements of statutory rape, emphasizing the age of the victim and the typical strict liability standard concerning the defendant's knowledge of the victim's age.
• Analyze the applicability and limitations of defenses, specifically consent in rape cases and mistake of fact regarding age in statutory rape cases.
• Recall the traditional marital immunity rule and its general abolition or modification under modern law.
• Distinguish rape from related offenses (e.g., sexual assault, seduction, incest) where relevant to element analysis.

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. At common law, the element of "force" in the crime of rape required proof that the intercourse was accomplished through:
   1. Only physical violence resulting in injury.
   2. Fraudulent inducement related to the nature of the act.
   3. Actual physical force or threats of great and immediate bodily harm.
   4. The victim's intoxication to the point of incapacity.
2. Defendant is charged with statutory rape in a jurisdiction following the traditional strict liability approach regarding age. Defendant reasonably believed the victim was 18, but the victim was actually 15 (below the age of consent). Which statement is most accurate?
   1. Defendant has a valid defense if his mistake of fact was reasonable.
   2. Defendant has a valid defense only if the victim misrepresented her age.
   3. Defendant likely has no defense based on his mistake regarding the victim's age.
   4. Defendant is liable only if he was reckless regarding the victim's age.
3. Modern rape statutes often differ from the common law definition by:
   1. Requiring proof of victim resistance.
   2. Focusing primarily on the defendant's motive.
   3. Applying only when the victim suffers serious physical injury.
   4. Being gender-neutral and emphasizing lack of consent over force.

Introduction

Rape and statutory rape represent significant areas within crimes against the person tested on the MBE. Understanding their distinct elements and the evolution from common law to modern statutes is essential. Common law rape focused on non-consensual sexual intercourse accomplished by force or threat against a female not the perpetrator's wife. Modern statutes typically broaden the scope, often making the crime gender-neutral and shifting the focus from force/resistance to the absence of legally valid consent.

Key Term: Rape (Common Law)
Unlawful carnal knowledge (sexual intercourse) by a male with a female, not his wife, without her consent and by means of force or threat of force.

Statutory rape, conversely, criminalizes sexual intercourse with a person below a statutorily defined age of consent, irrespective of consent or the defendant's knowledge of the victim's age, generally applying a strict liability standard to the age element.

Key Term: Statutory Rape
Sexual intercourse with a person under the statutory age of consent. The younger person’s apparent or actual willingness is legally irrelevant, and mistake regarding age is generally no defense.

Key Term: Age of Consent
The age set by statute at which a person is legally capable of consenting to sexual intercourse. It varies by jurisdiction (often 16–18) and is central to statutory rape.

Key Term: Strict Liability (Criminal Law Context)
Liability imposed without requiring proof of any mens rea for one or more elements of the offense. For statutory rape, the defendant’s mental state as to the victim’s age is usually irrelevant.

On the MBE, questions often contrast:

• Forcible rape (common law or modern): consent and force or its functional equivalent (threats, incapacity).
• Statutory rape: age alone, with strict liability as to whether the victim is below the age of consent.

Rape (Common Law)

At common law, rape involved unlawful carnal knowledge of a woman, not the defendant's wife, without her consent and achieved through force or threat of force. Rape was a general intent crime: the defendant had to intend the sexual act, but not necessarily intend to violate the law.

Elements

At common law, the prosecution generally had to prove:

• Unlawful Sexual Intercourse: Any penetration, however slight, of the vagina by the penis was sufficient. Emission was not required. Contact with other body parts or use of objects would not constitute rape, but might be another offense at common law.

• By a Man with a Woman Not His Wife: The common law included marital immunity, meaning a husband could not legally rape his wife. This immunity is now largely abolished.

• Without Effective Consent: The victim must not have consented in a legally effective way. Consent obtained by force, threats of immediate serious bodily harm, or where the victim was incapable of consenting (e.g., unconscious, mentally incompetent) was ineffective.

• By Force or Threat of Force: The act had to be accomplished through actual physical force or threats of imminent death or serious bodily harm. Some degree of resistance by the victim was traditionally required, unless resistance would have been futile or dangerous.

Key Term: Effective Consent
Consent that is voluntary, informed, and given by a person legally capable of consenting. Consent is ineffective if obtained by force, certain threats, or when the victim is incapacitated or deceived about the nature of the act.

Key Term: Force (in Rape Law)
Physical power or violence used to overcome the victim’s will, or to compel submission to sexual intercourse. Even slight force can suffice if used to accomplish non-consensual intercourse.

Key Term: Threat of Force
An express or implied threat of imminent death, serious bodily injury, or similar harm that reasonably places the victim in fear and overcomes the victim’s ability to refuse or resist intercourse.

Marital Immunity (Common Law Rule)

At common law, a husband could not be guilty of raping his wife. This doctrine rested on the idea that marriage implied permanent consent to intercourse.

Key Term: Marital Immunity
The traditional rule that a spouse (usually the husband at common law) could not be prosecuted for raping the other spouse. This has been abolished or severely limited in almost all jurisdictions.

Modern statutes have eliminated or curtailed this rule. On the MBE, unless the question explicitly invokes the historical common law rule, assume that a spouse can be guilty of raping the other spouse.

Lack of Effective Consent in Detail

Common law recognized several ways in which consent could be absent or legally ineffective:

• Actual Force: If intercourse was accomplished by physical force overcoming the victim, consent was absent.

• Threats of Great and Immediate Bodily Harm: Threats of imminent serious bodily injury (to the victim or sometimes to a third person) made any resulting “consent” ineffective. The victim did not need to resist “to the utmost” if resistance would be dangerous or futile.

• Victim Incapable of Consenting:

  • Unconsciousness or Sleep: A sleeping or unconscious person cannot consent.
  • Intoxication or Drugs: If the victim is so intoxicated (especially involuntarily) that they cannot understand the nature of the act or communicate consent, intercourse constitutes rape.
  • Mental Incapacity: Severe mental illness or cognitive impairment can make the victim incapable of consenting.

• Fraud in Limited Circumstances: Only certain types of fraud vitiate consent.

Key Term: Fraud in the Factum
Deception about the nature or character of the act itself (e.g., leading the victim to believe the act is medical treatment rather than sexual intercourse). Consent given under such deception is ineffective; intercourse is treated as rape.

Key Term: Fraud in the Inducement
Deception about collateral matters that induce the victim to agree to intercourse (e.g., false promises of marriage, misrepresentations about wealth or social status). This does not negate consent for rape, though it may be another offense in some jurisdictions (e.g., seduction).

Under the majority view tested on the MBE:

• Fraud in the factum → consent ineffective → rape.
• Fraud in the inducement → consent still legally effective → no rape (though other crimes may apply).

Examples of Fraud

• Fraud in the factum (rape): A person convinces a patient that penetration is a necessary medical procedure when it is actually sexual intercourse.
• Fraud in the inducement (not rape): A person falsely promises to marry the victim or lies about being unmarried to obtain consent.

Mens Rea and Mistake of Fact (Rape)

Rape is generally treated as a general intent crime:

• The defendant must intend to have intercourse.
• The defendant does not need a purpose to use force or to cause harm.
• Voluntary intoxication is not a defense to rape as a general intent crime.

Mistake of fact regarding consent:

• Many jurisdictions allow an honest and reasonable mistake about the victim’s consent to negate the required mental state.
• An unreasonable mistake is typically not a defense for a general intent crime.
• On the MBE, if the fact pattern suggests the defendant honestly but unreasonably believed the victim consented, that usually does not defeat liability unless the statute is expressly made a specific intent offense (rare in rape questions).

Worked Example 1.1

A man tells a woman that he is a licensed physician and needs to perform an internal “procedure” to treat a serious medical condition. Believing this, the woman consents, and he engages in sexual intercourse during the “procedure.” In a different scenario, the same man simply promises to marry the woman if she agrees to intercourse and she consents based on that promise.

Answer:
In the first scenario, the man has likely committed rape. He deceived the woman about the nature of the act (fraud in the factum); her apparent consent is ineffective. In the second scenario, he used fraud in the inducement (a false promise of marriage). That type of fraud does not negate consent for purposes of rape, so he is not guilty of rape on those facts (though he might be guilty of another offense such as seduction if a statute so provides).

Modern Developments

Modern statutes have significantly modified the common law approach, both substantively and terminologically (often using “sexual assault” rather than “rape”).

• Gender Neutrality:
  Most statutes now define rape in gender-neutral terms, potentially applying to any perpetrator or victim regardless of gender, and often encompassing various forms of sexual penetration (e.g., anal, oral, and sometimes penetration with objects).

• Focus on Lack of Consent:
  The key element is often the absence of consent, rather than the presence of significant physical force or demonstrable resistance. Many jurisdictions require affirmative, knowing, and voluntary agreement.

Key Term: Consent (in Rape Law)
An affirmative, voluntary, and informed agreement to engage in a sexual act. Its validity can be negated by force, threats, incapacity, or particular types of fraud.

Modern statutes recognize lack of consent in situations including:

• Physical helplessness (e.g., unconscious, asleep).

• Mental incapacity (e.g., severe intellectual disability).

• Intoxication to the point of inability to understand or communicate consent (especially when the defendant knows or causes the intoxication).

• Coercion or exploitation of authority (e.g., prison guard and inmate, therapist and patient) under some statutes.

• Resistance Requirement Diminished/Eliminated:
  Many jurisdictions have abolished any requirement that the victim physically resist. Evidence of lack of resistance does not by itself imply consent if threats, fear, or incapacity explain the victim’s behavior.

• Marital Immunity Abolished:
  The common law marital immunity has been abolished or drastically curtailed in virtually all jurisdictions. Many statutes explicitly state that a spouse can be a rape victim.

• Grading and Related Offenses:
  Modern codes often divide sexual offenses into degrees based on factors such as:

  • Use of weapons or serious bodily injury.
  • Multiple assailants.
  • Age of the victim.
  • Relationship of trust or authority.

These grading distinctions may appear in fact patterns to explain why prosecutors charge a specific degree of sexual assault, but the core MBE issue will still be whether the elements of rape (lack of consent, force/threat or equivalent, and intercourse/penetration) are met.

Statutory Rape

Statutory rape involves sexual intercourse with a person under a statutorily specified age (the "age of consent"). It exists to protect minors who are deemed legally incapable of consenting, even if they appear to agree.

Elements (Statutory Rape)

The typical elements are:

• Sexual Intercourse:
  Defined similarly to rape, involving penetration, however slight.

• Victim Under Age of Consent:
  The victim must be below the legally defined age of consent, which varies by jurisdiction (commonly 16 or 18). Some jurisdictions also have “age gap” or “Romeo and Juliet” provisions that reduce or eliminate liability when the parties are close in age, but do not assume such an exception on the MBE unless stated.

• Strict Liability Regarding Age:
  The most critical aspect for the MBE is that statutory rape is typically a strict liability crime concerning the victim's age. The defendant’s belief about the victim’s age—reasonable or otherwise—is usually irrelevant.

Mens Rea and Mistake as to Age

Although statutory rape is strict liability as to age, it still requires:

• Intent to have intercourse (the act itself).
• No mental state is required as to the victim’s being underage.

Consequences:

• Consent is irrelevant: A minor’s apparent willingness does not matter.
• Mistake of fact regarding age is generally not a defense, even if:
  • The victim lied about their age.
  • The defendant checked ID that appeared valid.
  • The defendant’s belief that the victim was of age was reasonable.

The Barbri outline notes a minority approach under which a reasonable mistake as to age could be a defense. On the MBE:

• If an answer choice states that statutory rape is a strict liability offense and mistake of age is no defense, that is the preferred choice.
• Only if no option reflects strict liability should you consider an answer that allows a reasonable mistake as a defense.

Defenses

• Consent:
  Consent by the victim is not a defense, as individuals below the age of consent are legally incapable of consenting to sexual intercourse for purposes of this offense.

• Mistake of Fact Regarding Age:
  Due to the strict liability nature of the offense regarding age, a defendant's reasonable belief that the victim was of the age of consent is generally not a defense.

• Other Defenses:
  Standard defenses (e.g., insanity, duress if applicable to the sexual act, impossibility in limited procedural contexts) can still apply, but they rarely feature in MBE statutory rape questions. Voluntary intoxication is not a defense to the strict liability age element.

Worked Example 1.2

David, age 22, met Chloe, age 15, online. Chloe told David she was 19 and showed him a fake ID confirming this age when they met in person. Believing her to be 19, David engaged in consensual sexual intercourse with Chloe. The age of consent in the jurisdiction is 17. David is charged with statutory rape. His defense is his reasonable mistake of fact based on Chloe's representations and the fake ID.

Answer:
David is likely to be found guilty. Statutory rape is typically a strict liability offense regarding the victim's age. David intended the act of intercourse, and his knowledge or mistake concerning Chloe’s age is legally irrelevant. Even though his belief that she was 19 was reasonable and based on her deceit and fake ID, this does not negate liability under the usual strict liability standard.

Worked Example 1.3

In a jurisdiction where the age of consent is 16, a 19-year-old defendant has consensual sex with a 15-year-old. The statute clearly states that it is no defense that the defendant reasonably believed the victim was 16 or older. At trial, the defendant argues he should be acquitted because the victim’s social media profile listed her age as 18, and he believed that information.

Answer:
The defendant is guilty of statutory rape. The statute expressly adopts the majority strict liability rule: mistake as to the victim’s age, even if reasonable, is not a defense. The defendant’s reliance on the victim’s social media profile does not alter his liability.

Exam Warning

Do not confuse the defense of consent applicable to forcible rape with statutory rape. Consent is legally irrelevant in statutory rape cases because the victim is deemed incapable of consent due to age. Similarly, mistake of fact regarding age is generally not a defense to statutory rape, unlike mistake of fact defenses available for specific intent crimes or even general intent crimes (if the mistake is reasonable).

Also, be careful to distinguish fraud in the factum (which can negate consent in forcible rape) from misrepresentation of age in statutory rape. Even if a minor actively lies about being over the age of consent, that misrepresentation does not prevent statutory rape liability in a strict liability jurisdiction.

Revision Tip

Focus on the distinction between forcible rape (common law and modern) and statutory rape:

• For forcible rape, analyze:

  • Whether there was intercourse.
  • Whether there was effective consent.
  • Whether force, threat of force, or incapacity negated consent.
  • Whether any fraud is fraud in the factum (rape) or merely fraud in the inducement (no rape).

• For statutory rape, identify:

  • The victim’s age and the jurisdiction’s age of consent.
  • Any express statutory age-gap exceptions (if given in the question).
  • Remember that age is a strict liability element: mistake of age is almost never a defense on the MBE.

Key Point Checklist

This article has covered the following key knowledge points:

• Common law rape required unlawful intercourse with a woman, not the wife, by force or threat, without effective consent.
• Rape was a general intent crime: the defendant needed intent to have intercourse, not a specific intent to rape.
• Effective consent must be voluntary, informed, and given by a competent person; it is negated by force, threats, incapacity, and fraud in the factum.
• Force in rape law includes both physical force and threats of great and immediate bodily harm that reasonably overcome the victim’s will.
• Fraud in the factum (deception about the nature of the act) can make intercourse rape; fraud in the inducement (e.g., false promises of marriage) generally does not.
• The common law marital immunity doctrine prevented a husband from being guilty of raping his wife, but modern statutes largely abolish this immunity.
• Modern rape statutes are often gender-neutral, focus on lack of consent, and reduce or eliminate resistance requirements.
• Statutory rape involves intercourse with a person below the age of consent; the younger person’s apparent willingness does not create a defense.
• Statutory rape is typically a strict liability crime regarding the victim's age; mistake of fact about age is generally not a defense.
• On the MBE, when a question presents both forcible rape and statutory rape possibilities, carefully identify whether the prosecution is relying on lack of consent/force or on the victim’s age.

Key Terms and Concepts

• Age of Consent
• Consent (in Rape Law)
• Effective Consent
• Force (in Rape Law)
• Fraud in the Factum
• Fraud in the Inducement
• Marital Immunity
• Rape (Common Law)
• Statutory Rape
• Strict Liability (Criminal Law Context)
• Threat of Force