Department of Recreation and Wellness
Sexual Assault Links
Sexual Assault Awareness: When Is It Rape?
There are a few questions to consider. There are three main considerations in judging whether or not a sexual act is consensual (which means that both people are old enough to consent, have the capacity to consent, and agreed to the sexual contact) or is a crime.
Was It Rape If...
Are the participants old enough to consent? Each state sets an "age of consent," which is the minimum age someone must be to have sex. People below this age are considered children and cannot legally agree to have sex. In other words, even if the child or teenager says yes, the law says no.
- In most states, the age of consent is 16 or 18. In some states, the age of consent varies according to the age difference between the participants. Generally, "I thought she was 18" is not considered a legal excuse - it's up to you to make sure your partner is old enough to legally take part.
- Because laws are different in every state, it is important to find out the law in your state. You can call your local crisis center or
the National Sexual Assault Hotline at 1.800.656.HOPE to find
out more about the laws in your state.
Do both people have the capacity to consent? States also define who has the mental and legal capacity to consent. Those with diminished capacity - for example, some people with disabilities, some elderly people and people who have been drugged or are unconscious - may not have the legal ability to agree to have sex.
- These categories and definitions vary widely by state, so it is important to check the law in your state. You can call your local crisis center or the National Sexual Assault Hotline at 1.800.656.HOPE to find out more about the laws in your state.
Did both participants agree to take part? Did someone use physical force to make you have sexual contact with him/her? Has someone threatened you to make you have intercourse with them? If so, it is rape.
- It doesn't matter if you think your partner means yes, or if you've already started having sex - "No" also means "Stop." If you proceed despite your partner's expressed instruction to stop, you have not only violated basic codes of morality and decency, you may have also committed a crime under the laws of your state (check your state's laws for specifics).
I didn't resist physically - does that mean it isn't rape?
- People respond to an assault in different ways. Just because you didn't resist physically doesn't mean it wasn't rape - in fact, many victims make the good judgment that physical resistance would cause the attacker to become more violent. Lack of consent can be express (saying "no") or it can be implied from the circumstances (for example, if you were under the statutory age of consent, or if you had a mental defect, or if you were afraid to object because the perpetrator threatened you with serious physical injury).
I used to date the person who assaulted me - does that mean it isn't rape?
- Rape can occur when the offender and the victim have a pre-existing relationship (sometimes called "date rape" or "acquaintance rape"), or even when the offender is the victim's spouse. It does not matter whether the other person is an ex-boyfriend or a complete stranger, and it doesn't matter if you've had sex in the past. If it is nonconsensual this time, it is rape. (But be aware that a few states still have limitations on when spousal rape is a crime.)
I don't remember the assault - does that mean it isn't rape?
- Just because you don't remember being assaulted doesn't necessarily mean it didn't happen and that it wasn't rape. Memory loss can result from the ingestion of GHB and other "rape drugs" and from excessive alcohol consumption. That said, without clear memories or physical evidence, it may not be possible to pursue prosecution (talk to your local crisis center or local police for guidance).
I was asleep or unconscious when it happened - does that mean it isn't rape?
- Rape can happen when the victim was unconscious or asleep. If you were asleep or unconscious, then you didn't give consent. And if you didn't give consent, then it is rape.
I was drunk or he was drunk - does that mean it isn't rape?
- Alcohol and drugs are not an excuse - or an alibi. The key question is still: did you consent or not? Regardless of whether you were drunk or sober, if the sex is nonconsensual, it is rape. However, because each state has different definitions of "nonconsensual", please contact your local center or local police if you have questions about this. (If you were so drunk or drugged that you passed out and were unable to consent, it was rape. Both people must be conscious and willing participants.)
I thought "no," but didn't say it. Is it still rape?
- It depends on the circumstances. If you didn't say no because you were legitimately scared for your life or safety, then it may be rape. Sometimes it isn't safe to resist, physically or verbally - for example, when someone has a knife or gun to your head, or threatens you or your family if you say anything.
Mail: 214 Student Recreation Center