Under the United State Common Law, rape has four main elements:

  1. Sexual intercourse (includes some penetration no matter how slight)
  2. With a woman not his wife
  3. Using physical force
  4. Without her consent*

*The victim must give consent at the time the mens rea and actus reus come together. Consent must be freely and voluntarily given, express and unequivocal. In most cases, consent will be an affirmative defense.

MPC Section 213.1, “a male who has sexual intercourse with a female not his wife is guilty of rape if:

(a) he compels her to submit by force or by threat** of imminent death, serious bodily injury, extreme pain or kidnapping, to be inflicted on anyone; or

(b) he has substantially impaired her power to appraise or control her conduct by administering or employing without her knowledge drugs, intoxicants or other means for the purpose of preventing resistance; or

(c) the female is unconscious; or

(d) the female is less than 10 years old.”

**The “force or threat” requirement has been applied differently throughout the country. In some jurisdictions, penetration is serious bodily injury and is enough to show force (See State in the Interest of MTS holding that the physical force requirement acts only to “qualify the nature and character of the sexual penetration.”) Other jurisdictions require that the threat of force involve death or serious bodily injury. (See People v. Evans holding defendant not guilty because no finding of forcible compulsion or threat beyond a reasonable doubt.)

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