The short answer to that question is it depends on where you are. There are wide variations in terminology among state and federal usage in defining crimes of a sexual nature. Any time that one attempts to have a discussion of rape it becomes quickly apparent that there is no consensus about what the word means. The term sexual assault commonly covers a range of acts of intimate invasion without consent that include things like touching and fondling along with sexual penetration. A number of states have removed the word rape from their statutes and define non-consensual penetration as some level of sexual assault. Thus, the effort to make coherent sense out of crime statistics becomes a challenge.
Todd Aiken's monumental political foot in mouth fiasco when he made claims about pregnancy and "legitimate rape" did accomplish shining the light of public attention on the issue.
A Candidate’s Stumble on a Distressing Crime
The very term “rape” has such a tortured — many would say ignominious — history that the F.B.I. just this year changed its definition after eight decades, and a number of states have purged their criminal codes of it entirely, referring instead to levels of sexual assault. Many experts now believe that rape is best understood as an act of unwanted bodily invasion that need not involve force.
In 2010, according to the FBI’s Uniform Crime Report, there were some 85,000 “forcible rapes” — a term that the F.B.I. will stop using next year — but that number included only assaults reported to law enforcement authorities that involved vaginal penetration of a woman by a man through use of force. The Centers for Disease Control and Prevention, by contrast, said that based on interviews with women, the number of men-on-women rapes in 2010 was 1.3 million, some 15 times higher than the F.B.I.’s total, partly because the count also included cases of anal and oral penetration and attempted penetration.
The problem goes well beyond a matter of having different terminology for the same thing. There is no real agreement on a consistent legal definition of the elements necessary to charge and convict a person of a crime that is described by most people as rape. This is one of many issues that arise in the disputes about the difficulties in getting police and prosecutors to pursue investigations and prosecutions.
We preach 'no means no' for sex, but that's not what the law says
The first-year law students I teach – smart, insightful, idealistic – have come of age hearing that "no means no" when it comes to sex. They are almost always stunned to learn that, in most states, the legal definition of rape still requires the use of physical force. In other words, a verbal "no" isn't always enough.
Such reactions underscore the extent to which the law lags behind a widespread belief that intercourse without consent is rape, and it should be punished accordingly. Indeed, while non-stranger rape is by far the most common rape scenario, with an estimated nine out of 10 women knowing their assailant, the criminal law was not designed to punish it. Most rapes by intimates and acquaintances are never prosecuted, or even brought to the attention of the police, contributing to their relative absence in mainstream media.
There is a lot of discussion about the intent and motivation of rapists. The notion is put forth that rape is about power and control, not about sexual gratification. There is definitely a core of truth in this idea. It is very well established that people who are victims of rape almost always experience a strong sense of loss of power and control. For many of them this produces a severe emotional trauma that can endure for a long time. It is always difficult to know with certainty what the real intent and motivation of another person is. Claiming that all men who commit the crime of rape have more or less identical motivations is difficult to establish. Fortunately establishing intent is not necessary to prove the crime as it is in the case of murder. Rape is a crime of
general intent.
Crimes of general intent require only that the suspect commit the proscribed act. Unlike specific intent, there is no requirement to intend a proscribed result.
Creation of an unreasonable risk of harm (negligence or recklessness) will typically suffice for a general intent crime.
General intent crimes are:
Rape
Battery
Kidnapping
False imprisonment
This legal quagmire is just one facet of the confusion and conflict in American society about sexuality and the basic rights of all people to have control over their own bodies and person. The very notion of rape as a crime arises out of a common law tradition of a crime against property. The crime was inflicting damage on the property of fathers and husbands, i.e their daughters and wives.