The criminal act element required for rape in many states is sexual intercourse, accomplished by force or threat of force. 1 Sexual intercourse is typically defined as penetration of a woman’s vagina by a man’s penis and can also be referred to as vaginal intercourse. 2 Some jurisdictions include the penetration of the woman’s vagina by other body parts, like a finger, as sexual intercourse. 3 The Model Penal Code defines the criminal act element required for rape as sexual intercourse that includes “intercourse per os or per anum,” meaning oral and anal intercourse (Model Penal Code § 213.0(2)). In most jurisdictions, a man or a woman can commit rape. 4
Although it is common to include force or threat of force as an indispensible part of the rape criminal act, some modern statutes expand the crime of rape to include situations where the defendant does not use force or threat, but the victim is extremely vulnerable, such as an intoxicated victim, an unconscious victim, or a victim who is of tender years. 5 The Model Penal Code includes force, threat of force, and situations where the defendant has impaired the victim’s power to control conduct by administering intoxicants or drugs without the victim’s knowledge or sexual intercourse with an unconscious female or a female who is fewer than ten years old (Model Penal Code § 213.1(1)). Other statutes may criminalize unforced nonconsensual sexual intercourse or other forms of unforced nonconsensual sexual contact as less serious forms of rape with reduced sentencing options. 6
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