In general, you commit the crime of rape if you have non-consensual sexual intercourse with another person by means of physical force or threats. By contrast, you commit the offense of sexual assault if you make sexual contact with a person, as in touching a person’s intimate parts, without that person’s consent.
Keep in mind, however, that the precise definition of “rape” and “sexual assault” will differ across state laws. Further, some states treat rape and sexual assault as the same crime. In this instance, a state may still recognize a crime like sexual assault but refer to it as
- sexual battery or
- sexual abuse.
In those states that do make a difference between the two offenses, both rape and sexual assault involve sex acts performed without the victim’s consent.
1. What is the legal definition of “rape”?
Some states use the terms “rape” and “sexual assault” interchangeably. For example, Arizona and Colorado treat rape and sexual assault as the same crime.1
Many states make a distinction between the two offenses. In those that do, rape generally refers to the offense of having forcible sexual intercourse with another person without the consent of the “victim.”2
Sexual intercourse generally means any sexual penetration, no matter how slight, of the vagina or genitalia by the penis. Ejaculation is usually not required for an act to be considered sexual intercourse.3
Penalties
Rape is usually prosecuted as a felony offense (as opposed to a misdemeanor). Depending on the facts of the case, the crime is punishable by years, sometimes even life, in state prison. In addition, offenders will have to register as a sex offender.
Statutory rape
Note that statutory rape is a separate and distinct sex crime from rape.
You commit statutory rape if you have sexual intercourse or sexual activity with a minor under the age of consent. The age of consent is generally 18 years of age.
Keep in mind that it is considered statutory rape even if the “victim of rape” willingly participated in a sex act, as the law deems minors to be legally incapable of consenting to have sex.
2. What is “sexual assault”?
In states making a distinction between rape and sexual assault, the latter is generally defined as:
- intentionally making physical contact with the intimate body parts of another person, and
- doing so without that person’s consent.4
“Intimate parts” definition
“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.5
An example of sexual assault is a person fondling a woman’s breasts without her consent.
Criminal liability
As with rape, prosecutors typically file sexual assault cases as felonies. Criminal charges are often punishable by several years in jail or prison.
Depending on the jurisdiction, “sexual assault” may be referred to as
- “sexual battery,”
- “sexual abuse,” or
- “unwanted sexual contact.”
Note that instances of sexual assault may fall short of involving sexual intercourse or penetration.
Civil liability
Note that sexual harassment generally involves different sexual acts than sexual battery. “Sexual harassment” is a form of discrimination in the workplace. It involves unwanted sexual advances or conduct.
Sexual harassment often gives rise to civil lawsuits in which a “victim” can receive monetary compensation.
3. What is “consent”?
Both rape and sexual battery involve a person committing a sex act without the “victim’s” consent.
While the legal definitions of consent vary among the states, consent is generally referred to as voluntarily yielding to another person’s:
- proposal,
- plan, or
- suggestion.6
Consent does not mean submission under the influence of another person’s fear or threats.7 Consent is an act that is unclouded by:
- fraud,
- duress, and
- mistake.
4. Can a criminal defense attorney help?
Yes. If you are facing criminal charges of rape or sexual assault, you should consult with a criminal defense lawyer for help.
A defense attorney can help you try and contest a charge with a legal defense. A defense can work to reduce a charge or beat one altogether.
Note that most lawyers and law firms provide free consultations. A free consultation means you can gain legal advice without spending a dime.
For more discussion, see our page on sexual assault vs sexual abuse and sexual battery vs sexual assault – Are they the same?
Additional resources
If you are a victim, you can contact the police. You can also find support and guidance at the following:
- RAINN (Rape, Abuse & Incest National Network) – 24/7 hotline for survivors looking for support and guidance to get rape kits, shelters, and legal representation.
- National Sexual Violence Resource Center (NSVRC) – Information on your rights and options as a rape survivor.
- Sexual Assault Kit Initiative (SAKI) – Support and information for survivors about what to do following a sexual assault.
- Victim Connect Resource Center – Referral helpline for survivors looking for immediate guidance and support.
- Joyful Heart Foundation – Provides education and advocacy for survivors of sexual assault.
Legal References:
- See Colorado Revised Statutes 18-3-402 and Arizona Revised Statutes 13-1406.
- Black’s Law Dictionary, Sixth Edition – “Rape.”
- See, for example, CALCRIM No. 1000 – Rape by Force, Fear, or Threats, Judicial Council of California Criminal Jury Instructions (2022 edition).
- See, for example, Code of Georgia 16-6-22.1.
- See same.
- Black’s Law Dictionary, Sixth Edition – “Consent.”
- See same.
