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Rape as Nonconsensual Sex

This chapter considers rape in its most basic form, referred to here as rape as nonconsensual sex. In theory, a legislature could simply define rape as “nonconsensual penetrative sex” and leave it to factfinders to determine if the evidence presented was sufficient to support the charge. But such a definition would probably be too open-ended to give potential offenders, law-enforcement officials, and courts adequate notice and direction; and for this reason, there has been an attempt to articulate more specific conditions under which rape as nonconsensual sex occurs. The question is how to do this in a way that is neither under- nor overinclusive. The chapter considers three approaches the law has taken to defining such an offense: as obtained by force, in the face of a no, and in the absence of affirmative consent, paying particular attention to concerns about under- and overinclusiveness. The chapter also includes a brief discussion of rape law’s mens rea requirement and the availability of the mistake-of-fact defense.