This article is written by Nishka Kamath, a graduate of Nalanda Law College, University of Mumbai. It gives an overview of the distinction between sexual assault and rape under US law. Further, an attempt is made to shed light on the most important definitions of terms related to sexual assault and rape. Moreover, a state-wise description of the difference between sexual assault and rape in several US states is provided at the end of this article.
It has been published by Rachit Garg.
Introduction
In general, an individual commits rape if he or she uses physical force or threats to force a consensual sexual intercourse between two people. In contradiction, an individual is guilty of committing sexual assault if any sexual contact is made with another human being. An example of sexual assault would be touching intimate parts of a person without their consent, thus not amounting to rape. The definitions of these terms are discussed in brief in the coming paras.
Before we begin, it should be noted that the definition of rape and sexual assault is different from state to state in the United States. Further, some states classify rape and sexual assault as the same crime. Furthermore, a state in the US might consider sexual assault to be sexual battery or sexual abuse. Moreover, in states where there are no discrete definitions for rape and sexual assault, these offenses will be considered sexual acts performed without the consent of the victim.
This article is an attempt to shed light on the differences between rape and sexual assault.
Sexual assault vs. rape under US law
Brief overview
Sexual assault
Sexual assault usually refers to any crime where an individual is subjected to sexual contact or any unwanted or offensive touching. Sexual assault crimes are broad and range from groping, touching, to assault and battery and go on to heinous crimes like that of rape. All the states in the US have criminalized this offense, but as stated above, the definition varies from state to state. In general, it is the act of touching another person in an unwanted manner. It is a serious offense, and the penalties for such an offense are severe, both at the state and federal levels.
Further, sexual assault relates to any sexual activity that is without consent and prohibited by state or federal laws, including those activities where the victim cannot give free consent.
Rape
Rape can be defined as sexual intercourse forced on another person without his/her consent and against their will. This activity is punishable throughout the United States, but the legal terms (as mentioned above- some call it rape, sexual assault, sexual battery, etc.) vary from state to state. Regardless of the term used by the state, any activity involving sexual penetration or sodomy without consent is rape.
Please note: Generally, heavy petting or other unwanted sexual touching not involving penetration will not amount to rape or criminal sexual penetration. Even though it is a crime, it is said to be less serious than one involving penetration.
Legal definitions
Before looking at the definitions of sexual assault, rape, sexual abuse, consent, and force, which are necessary to understand before we delve deeper into the details, a point must be made that the definitions differ from state to state. Moreover, some states consider rape and sexual assault under one category or as the same crime. Most of the definitions have been discussed under 10 U.S. Code § 920 – Art. 120. Furthermore, a state may sometimes consider referring to sexual assault as sexual battery or sexual abuse. Moreover, consent will mean voluntarily agreeing to do some activity proposed by another individual. Let us now have a look at these terms.
Sexual abuse
Sexual abuse is defined under Title 18, Part 1, Code § 2242 of the US Code. It says any individual whether living on territorial (land) or maritime (water) jurisdiction of the United States or in a federal prison or any prison, for that matter, or a place where individual(s) are held in custody via a contract or agreement with the head of any federal department or agency, knowingly-
- Causes another individual to engage in any sort of sexual activity by jeopardizing or putting the other person in fear (other than by jeopardizing or putting the other person in fear that any individual will be subjected to death, serious bodily injury, or kidnapping);
- Gets involved in any sexual activity with another individual if that person is:
- Not capable of assessing the nature of the activity; or
- Physically not capable of refusing to engage in, or communicating the refusal to perform the sexual activity; or
- Participates in any sexual activity with another individual without consent, to do so through coercion; or attempts to do so.
It further says the perpetrator shall be fined under this title and imprisoned for years or life.
Moreover, there are several federal statutes enlisted under 18 U.S. Code Chapter 109A– sexual abuse, which includes the following sexual offenses:
- Aggravated sexual abuse under 18 U.S.C. § 2241,
- Sexual abuse under 18 U.S.C. § 2242,
- Sexual abuse of a minor under 18 U.S.C. § 2243,
- Abusive sexual contact under 18 U.S.C. § 2244,
- Offenses resulting in death under 18 U.S.C. § 2245, inter alia.
Sexual assault
In some states in the United States, there is a distinction between rape and sexual assault. Sexual assault is usually defined as:
- Deliberately making a physical contact with the intimate body parts of another individual, and
- Performing such an activity without the consent of that individual.
Intimate parts under sexual assault
Intimate parts generally means the
- primary genital area,
- anus,
- groin,
- inner thighs, or
- buttocks of a male or female and the breasts of a female.
A man fondling a woman’s breasts without her consent is one example of sexual assault.
Please note: Depending on the jurisdiction, sexual assault may be referred to as:
- sexual battery,
- sexual abuse, or
- unwanted sexual contact.
Further, the definition of sexual assault is discussed in this Code under subsection (a), any individual subject to this chapter who-
- Performs a sexual activity on another individual by-
- intimidating or placing that other individual in fear;
- makes a deceitful representation that the sexual activity served a professional purpose; or
- instigating a belief by any trickery, pretense, or concealment that the person is another person;
- Commits any sexual activity on another individual-
- without obtaining the consent of the other individual; or
- when the individual knows or must reasonably know that the other individual is asleep, unconscious, or otherwise not aware that the sexual activity is taking place; or
- Commits a sexual activity on another person when the other person is not capable of giving consent to the sexual activity due to-
- impairment caused due to any drug, intoxicant, or other similar substance, and that condition is known or must be known by the person; or
- a mental disease or defect, or physical disability, and that condition is known or must be known by the person;
is guilty of sexual assault and shall be penalized at the direction of the court martial.
Rape
In the United States, there are states that use the terms “rape” and “sexual assault” interchangeably. For instance, Arizona and Colorado consider rape and sexual assault to be the same crime (discussed in detail below). Many states, however, distinguish between the two offenses; in such cases, rape refers to the crime of forcibly having sexual intercourse with another person without obtaining the consent of the victim.
Further, under 10 U.S. Code § 920 – Art. 120, subsection (a), rape means any individual being subjected to any sexual activity upon another individual person by-
- using unlawful force against the other person;
- using force causing or likely to cause demise or grievous bodily harm to any individual;
- intimidates or places any other individual in fear that other individual will be subjected to losing their life, grievous bodily harm or kidnapping;
- first rendering that other person unconscious; or
- administering to the other individual by coercion or threat of force, or without the knowledge or assent of that person, a drug, intoxicant, or any substance like so and thereby substantially impairing the ability of that other person to appraise or control conduct.
Such a person shall be guilty of committing rape, and the punishment would be at the direction of the court martial.
Consent
Both rape and sexual assault involve a person engaging in sexual activity without the consent of the victim. Even though the legal definition of the term “consent” may be different from state to state, a general overview of it can be voluntarily agreed to by other individuals:
- proposal,
- plan, or
- suggestion.
A person cannot be said to have consented to any sexual activity if he/she has been subjected to fear or threat to obtain consent.
Under 10 U.S. Code § 920 – Art. 120, subsection (7)(a), “consent” is defined as an agreement given freely to any activity by a competent person. Any sort of coercion, threat, or fear imposed on the individual, or putting another person in fear, done to obtain consent, will not amount to consent. Under this definition, even if the individuals are dating, were dating previously, or have any other social or sexual relationship, they must obtain consent before performing any sexual activity. Further, the way an individual dresses will not in any way amount to giving consent.
Also, consent cannot be obtained from a sleeping, unconscious, or incompetent person. While determining whether consent was given freely or not, the circumstances surrounding the person are to be taken into consideration.
Incapable of consenting
Under 10 U.S. Code § 920 – Art. 120, subsection 8, the term “incapable of consenting” is discussed. It states that any individual who is not able to understand the nature of the activity or is not physically capable of participating or communicating their unwillingness to engage in such a sexual activity will be considered to be incapable of giving consent.
Force
Force does not necessarily have to be by means of physical pressure. An individual committing it may sometimes use emotional coercion, psychological force, or manipulation to compel a victim to commit non-consensual sexual activities. The perpetrators of such crimes may also use threats to force a victim to obey; at times, they might also threaten to harm the family of the victim or any of their beloved ones.
Further, under 10 U.S. Code § 920 – Art. 120, subsection 4, the term “force” is discussed. It means-
- Using a weapon;
- Using physical strength or violence sufficient enough to overcome, restrain, or injure a person; or
- Causing bodily harm that is sufficient enough to coerce or compel submission by the victim.
Related federal statutes
Rape and sexual assault
As discussed above, both rape and sexual assault are defined under 10 U.S. Code 920, Art. 120. The state-wise definitions and differences are discussed in detail below.
Key elements of sexual assault and rape
Sexual assault
What constitutes sexual assault
There are several key elements that are considered while investigating a sexual assault case, like:
- The nature of the physical contact,
- The body part and the area that was touched,
- The factual circumstance that caused the sexual assault,
- If there were gestures or words with the sexual assault,
- Other connected situations involved in the sexual assault.
Types of sexual assault
The following are some of the most common types of sexual assault, inter alia:
Blitz sexual assault
Blitz sexual assault refers to the perpetrator quickly and brutally assaulting the victim without prior contact. Such an activity usually occurs at night in public places.
Contact sexual assault
This type of sexual assault occurs when a perpetrator contacts the victim and tries to gain their confidence either by flirting or sweet talks, luring them to their car, or trying to force the victim into a situation where the sexual assault will occur.
Homeinvasion sexual assault
This type of sexual assault takes place when a stranger breaks into the house of the victim to commit such an act.
Types of sexual assault charges
Sexual assault is not confined to a particular sort of activity. When the perpetrators are taken in police custody, upon finding them guilty of the offence, they shall be punished with either of the three categorised crimes of sexual assault, namely:
Level one
Level one addresses sexual assault. It specifies that the assault committed on the victim was sexual in nature, but no physical injuries were inflicted even though the victim’s sexual integrity was compromised. Level one usually consists of the following types of activities:
- touching inappropriately,
- unwanted kissing,
- oral, vaginal, or anal sex.
Under level one, the matter of consent is quite critical.
Level two
Under level two, any sort of sexual assault that leads to bodily harm or entails any sort of weapon or threat to a third party is addressed.
Level three
Level three covers aggravated sexual assault.
Please note: These levels are classified by the severity of the physical injuries inflicted on the victim who lodged a complaint. In a country like Canada, there is no statute of limitations on sexual assault. A perpetrator can be charged with committing a sexual offense at any time, irrespective of the time of occurrence of the crime.
Rape
What constitutes rape
In American society, traditionally, rape has been defined as the “forced penetration of a woman by a male assailant.”
Types of rapes
The following are some of the most common types of rapes, inter alia:
Acquaintance rape
This type of rape is an umbrella term for rapes committed against known individuals. In simple words, the perpetrator knows the victim well. This is one of the most common forms of rape.
Date rape
This is a kind of acquaintance rape where the victim and the perpetrator are on a date and the perpetrator rapes the victim.
Stranger rape
This type of rape is committed by a stranger or an unknown person.
Statutory rape
This type of rape refers to an unlawful sexual encounter with a minor. The Californian law prohibits an adult from having sex with a minor or a minor from having sex with another minor, irrespective of the consent obtained.
Types of rape charges
Rape charges may differ from state to state. In Washington, there are three degrees of penalizing rape, namely:
First degree rape
First degree rape involves coercion and may occur with the use or threatened use of a deadly weapon, kidnapping, causing serious bodily harm to the victim, or even burglary. It is a Class A felony, and the punishment for the same can go up to life imprisonment.
Second degree rape
Second degree rape refers to those cases that involve forcible compulsion but do not go to the extent of a first degree offense. It may also take place in situations when a victim is not mentally or physically capable of giving consent or when the defendant is in a position of authority, for instance in a healthcare or elder care facility. It is also a Class A felony.
Third degree rape
It is an offense that does not amount to first or second degree rape but still involves a “clearly-expressed” lack of consent, coercion, or harm to the victim or their property. This is a Class C felony, and attracts an imprisonment of up to five years.
Difference between sexual assault and rape
Tabular representation of the difference between sexual assault and rape
| Grounds of difference | Sexual assault | Rape |
| Definition | A brief definition of “sexual assault” under 10 U.S. Code 920, Art. 120, is any sexual activity conducted by intimidating or deceiving, without consent or in the absence of consent, or on an individual who has any mental illness, is intoxicated, drugged, or the like, and cannot freely consent. | Rape is defined in subsection (a) of 10 U.S. Code 920 (Art. 120) as an unlawful activity conducted by coercion or force, or by retaining the individual, rendering them unconscious, or by drugging, intoxicating, or administering a substance that impairs their ability to consent. |
| Punishment | The punishment depends on the discretion of the court martial. | The punishment for the offense of rape will depend on the discretion of the court martial. |
| Types | There are several types of sexual assaults; some of them are:Blitz sexual assault,Contact sexual assault,Home invasion sexual assault. | There are several types of rapes; some of them are:Acquaintnace rape,Date rape,Stranger rape, statutory rape. |
| Types of charges | The perpetrators of sexual assault are punished under the following three categories of crime:Level one (no physical injuries),Level two (caused body harm),Level three (aggravated sexual assault). | The perpetrators of rape will be punished under the following three categories of crime (as per the state of Washington, which may vary from state to state):First degree rape,Second degree rape, and Third degree rape. |
| Gravity of offense | In states where there is a distinction between sexual assault and rape, sexual assault is less serious as compared to rape. | In states where there is a distinction between sexual assault and rape, rape is more serious than sexual assault. |
| Severity of punishment | In states where there is a distinction between sexual assault and rape, the punishment for sexual assault is less severe as compared to rape. | In states where there is a distinction between sexual assault and rape, the punishment for rape is more severe as compared to sexual assault. |
Defences for the offence of sexual assault and/or rape
The defendants charged with the offense of rape or sexual assault can avail the following defenses–
Innocence
In a rape or sexual assault case, the primary defense is claiming innocence. The accused or defendant may contend that he/she was not at the location when the crime took place, commonly known as presenting an alibi, thus, proving they were not with the victim at the time of the crime.
Further, the defendant or accused may claim that there has been a mistake of identity on the victim’s side. Moreover, the burden of proof lies with the prosecution and not the defendant.
Consent
A defendant can claim that the sexual activity committed was consensual. In some states of the US, defendants are allowed to claim a mistake of consent as long as he/she did not act recklessly in the ability of the victim to consent. So, if the defendant has not acted in a manner that was wild or irresponsible, an attempt to claim an honest belief that the victim gave consent can be made.
Insanity or mental capacity
Another possible defense for such an activity can be an insanity plea or the mental incapacity of the defendant to control his behavior, to form any criminal intent or to understand the gravity of the activity conducted or its unlawfulness for that matter. So, the mentally challenged defendant, who has no ability to fully understand what he/she was doing can claim that they had a mental illness or defect at the time of committing the sexual activity.
Sex offender registration
The perpetrator found guilty of any sex offense has to register on a national sex offender registry. This registry is state-specific. Every state in the United States has a sexual offender program and a registration program.
This website has information relating to the name of the defendant, his/her address, case, and report. Additionally, this information is made accessible to the local public. Most sex offenders undergo treatment in jail or prison as a condition of their probation.
Who are the perpetrators of such abominable crimes
It is a typical misconception that rapes and sexual assaults are committed by “masked strangers hiding in the bushes” while a person is walking alone at night. However, such occurrences do occur, and statistics have made it evident that strangers are less likely to commit such offenses in comparison to assaults by friends, families, or acquaintances.
As mentioned above, it is a common belief that offenders in most rape cases are strangers or unknown to the victim. However, the truth is that in the majority of the cases, the perpetrators are known to the victim; they could either be relatives, friends, or work colleagues, too.
Rape can occur within marriages too, as sex is all about consent. If a partner coerced the other partner to have sex, then it constitutes as rape as well.
Statistics on sexual assault and rape in the United States
The U.S. Department of Justice published a report titled “Criminal Victimization, 2005,” and the following are the statistics on rape and sexual assault:
- Nearly 73% of the sexual assault perpetrators were committed by a non-stranger.
- Around 28% were by an intimate partner.
- Around 38% percent were friends or acquaintances.
- About 7% of sexual activities were committed by a relative of the victim.
- Only 2% were strangers, i.e., there was no relationship between the victim and the perpetrator.
- Further, around 50% of rape and sexual assaults took place within one mile of the house of the victim, with four in ten visiting the house of the victim.
Seeking help in matters related to sexual assault and rape
When and where can a victim of sexual assault or rape seek aid
If any individual has experienced sexual violence and wants to seek help or would like more information, it is advised they call 1-888-772-7227 in Pennsylvania, or contact the Rape, Abuse & Incest National Network (RAINN) at 1-800-656-4673 from any state in the U.S.
What if someone accuses you of charges of sexual assault
It is not a fact unknown that not every individual charged with the offense of sexual assault or rape is really guilty. False allegations may be levied against the accused in order to satisfy the alleged victim’s ulterior motives. In some cases, a victim may mistake one person for another.
In such cases, it is always advisable to seek legal guidance from an attorney. The attorney will help in freeing the accused from such charges, thus acting as a deciding factor between a conviction and an acquittal.
Sexual assault vs. rape : a state wise description
As discussed above, there is a difference between sexual assault and rape in several states in the United States. Here is a brief description of some states:
New York
In New York, sexual assault is the umbrella term used to define sex crimes that involve nonconsensual touching or sexual conduct. Sexual assault refers to any sexual act committed without obtaining the prior consent of the victim.
Whereas, rape is referred to as a non-consensual sexual intercourse and can involve physical force or coercion. It can also involve duress, which can involve the use of drugs, threats of violence, or emotional manipulation. The punishment for rape is as follows:
- First degree rape (Class B felony- up to 25 years of imprisonment).
- Second degree rape (Class D felony- up to 7 years maximum imprisonment).
- Third degree rape (Class E felony- up to 5 years of maximum imprisonment).
Texas
In Texas, sexual assault is a term commonly used to refer to rape. Rape is referred to as an assaultive offense of a sexual nature as per the law in Texas.
In this state, the offense of sexual assault or rape is a second-degree felony, and the convicts can be sentenced to two to twenty years of imprisonment and also a fine of $10,000.
Hawaii
In Hawaii, sexual assault refers to any crime that involves any unwanted and offensive sexual touching. Moreover, there are four degrees of sexual assault that apply to the most serious sex crimes, which are as follows:
- First degree sexual assault (Class A felony).
- Second degree sexual assault (Class B felony).
- Third degree sexual assault (Class C felony).
- Fourth degree sexual assault (Misdeamenour).
Further, rape or non-consensual intercourse committed by coercion, force, or duress is penalized under Hawaiian laws.
Virginia
In Virginia, sexual assault and rape charges are considered serious crimes and felonies. Sexual assault can be any activity performed forcibly or against someone’s will. Depending on the facts of the case and the severity of the sexual assault crime, the punishment ranges from a year to 25 years in prison and a fine of up to $2500, or both.
Rape, on the other hand, is classified as sexual assault but has a more profound meaning that involves sexual intercourse involving penetration into the vagina, anus, or mouth. The punishment for this can go up to life imprisonment. Other penalties may apply, too, depending on the severity of the rape.
Prevention of sexual assault and rape : way forward
In order to eradicate or prevent sexual assault, the following steps can be taken:
- Elucidating women regarding their sexual rights.
- Provide social skills training.
- Shifting men’s and women’s attitudes about traditional sex roles, adversarial sexual beliefs, and rape stereotypes.
- Enlighten children and teenagers early on personal boundaries and respect for others.
Conclusion
In the end, one must always remember that there can be different forms of sexual assault or rape, but one thing remains constant: it is never the fault of the victim. Further, as per a recent report published by Equality Now, the rape and sexual assault laws across America are insufficient and inconsiderate. They must be enforced systemically to prevent the risk of sexual violence against women and/or adolescent girls. The report also stated that most rape laws in America fall short of the international human rights standard and that rape or sexual assault laws are not successfully implemented. For instance, in Paraguay, there is no prison sentence for raping an adolescent girl between the ages of 14 and 16; however, the punishment for raping a child or an adult ranges from four to fifteen years.
Moreover, the following barriers in American law were stated in the report:
- In some states, the definition of rape or sexual assault is quite limited and some even require proof to be produced for such a heinous criminal act.
- The concept of consent-based definitions of rape is only is six out of 43 jurisdictions, thus, making the laws insufficient.
- There are some jurisdictions that have a prescribed time limit within which one has to file cases related to equal violence.
In order to curb these barriers, the American Government has to address the issue of sexual violence, and to do so, they can implement the following measures:
- Improve protection in the law.
- Improvise on the accessibility to justice under the law.
- Improve implementation, accountability and accessibility to justice.
- Challenge negative stereotypes and improve the understanding of the local public in matters of sexual violence.
Word of advice
The information in this article provides the reader with a general overview of the difference between sexual assault and rape. It is not published with the intent of providing legal advice, and it is advisable that the readers not rely on legal advice on any of the websites online and seek legal advice from an attorney.
Frequently Asked Questions (FAQs)
What is the highest level of sexual assault?
Level three is the highest degree of sexual assault. It covers aggravated sexual assault. The punishment for the same depends on the state and the discretion of the court martial.
What is the highest degree of rape?
First degree rape is the most severe type of offense. It is a Class A felony and attracts life imprisonment. However, the punishment for first degree rape depends totally on the discretion of the judge.
What is SAAM in the United States?
In the United States, April is sexual assault awareness month, commonly known as SAAM.
SAAM’s mission is to elucidate people about sexual violence in society and to enlighten communities on how to prevent such offenses.
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