Rape charges are extremely serious charges that can potentially result in imprisonment. Someone convicted of rape offense faces up to twenty years imprisonment in the state prison, and additional collateral consequences, including the sex offender registration. Anyone who has been accused of rape needs a skilled attorney who has experience handling allegations of sexual assault, whether you are charged with rape, rape of child, or assault with intent to commit rape.
A charge of rape under G. L. c. 265, § 22 involves the following elements:
- That the defendant engaged in sexual intercourse, either “natural” or “unnatural,” with the complaining witness; and
- That the sexual intercourse was accomplished by compelling the complaining witness to submit by force or threat of bodily injury against his or her will.
As to the first element, “natural” intercourse includes inserting the penis into the female sex organ. “Unnatural” sexual intercourse includes oral and anal intercourse, including fellatio and cunnilingus, and/or other intrusions of a part of a person's body or other object into the genital or anal opening of another's body. Either natural or unnatural sexual intercourse is complete on penetration, no matter how slight, of a person's genital or anal opening. In addition to the vagina, the female genital opening includes the anterior parts known as the vulva and labia; penetration into the vagina itself is not required.
As to the second element, the force needed for rape may, depending on the circumstances, be constructive force, as well as physical force, violence or threat of bodily harm. As to constructive force, the Commonwealth must prove that at the time of penetration the complaining witness did not consent, or in other words, that the intercourse was against the complaining witness’ will. If a person submits because of fear it is not consent. The person must be free to exercise his or her will without restraint. Further, the complaining witness is not required to use physical force to resist.
Rape of a child is likewise an extremely serious crime. Someone convicted of this offense faces up to life in prison. A charge of rape of child under G. L. c. 265, § 23 involves the following elements:
- That the defendant engaged in sexual intercourse, either natural or unnatural, with the complaining witness; and
- That the complaining witness was a child under 16 years of age at the time of the alleged offense;
- That the sexual intercourse was unlawful.
As to the first element, “natural” and “unnatural” intercourse as defined in the same way as above. Likewise, penetration is defined in the same way as well.
As to the second element, the complaining witness must be under 16 years of age.
As to the third element, “unlawful” intercourse is defined as sexual intercourse outside of a marital relationship. In other words, unless the parties are married, sexual intercourse with anyone under the age of 16 is considered unlawful. This holds true even if the complaining witness initiated, agreed to, or consented to have sex in the factual sense.
Assault with intent to rape is similarly a very serious offense. Someone convicted of this offense faces up to twenty years in state prison. A charge of rape of child under G. L. c. 265, § 24 involves the following elements:
- That the defendant assaulted the complaining witness;
- That the defendant possessed a specific intent at the time of the assault to rape the complaining witness.
As to the first element, an assault is defined as an attempt or offer by one person to do bodily injury to another by force and violence. Alternately, an assault may consist of putting a person in fear of immediate bodily injury.
An assault may be committed in one of two ways. The first type of assault consists of an attempt to commit a battery. In this type of assault, the Commonwealth must prove beyond a reasonable doubt that the defendant intended to physically harm the complaining witness. The Commonwealth must also prove that the defendant did an act toward the commission of inflicting physical harm on the complaining witness. In other words, the Commonwealth must prove that the defendant did in fact attempt to do bodily harm to the complaining witness. Finally, the Commonwealth must prove that the defendant had the actual or apparent ability to inflict bodily harm. This means that the Commonwealth need not show the defendant possessed the actual ability to do bodily harm – apparent ability will suffice. However, the Commonwealth does not have to show that the complaining witness was apprehensive or fearful; fear or apprehension on the part of the complaining witness is not an essential element of this type of assault.
The second type of assault occurs when the defendant, with the intent to cause apprehension of immediate bodily harm, does some act that causes such apprehension. First, the Commonwealth must prove beyond a reasonable doubt that the defendant intended to cause apprehension of immediate bodily harm. Second, the Commonwealth must show that the defendant engaged in conduct of the sort that would raise a reasonable apprehension of bodily harm. Third, the Commonwealth must demonstrate that as a result of the threatened conduct, the complainant did in fact experience a reasonable fear of immediate physical harm. Finally, similar to the first type of assault, the Commonwealth need not demonstrate that the defendant had the actual ability at the time of the alleged assault to carry out the threat – apparent ability will suffice.
The second element the Commonwealth must prove beyond a reasonable doubt is that the defendant possessed a specific intent to rape the complaining witness. In other words, the defendant must have had it in his or her mind for some perceptible period of time to rape the complaining witness. Specific intent involves concentrating or focusing the mind. An act done with specific intent is a conscious act done with the determination of the mind to do that act. It is contemplation rather than reflex, and must precede the act. An act is specifically intended if the mind focuses on accomplishment of that act, even though the intent arose only an instant before the act. To prove assault with intent to rape, the defendant must have been shown to possess an actual, subjective intent to rape the complaining witness.
Under this statute, rape is defined in the same way as above.
The crime of an assault with intent to commit rape is committed when a person uses force or violence on another person without that person's consent, but the act of sexual intercourse is not completed, i.e., it is not necessary to prove that the defendant actually raped the complaining witness. If the defendant committed an assault on the complaining witness by violence with the intent of raping the complainant, it is of no consequence whether that intent was carried into actual execution.
There are a myriad of potential defenses that can be levied in the face of any of the above charges. Such defenses include defenses of consent – specifically an argument that the defendant and the complaining witness did in fact have sex, but that it was consensual – as well as defenses that there was no sexual intercourse at all. What defense will be the most effective depends on the individual circumstances of each case.
Regardless of which specific charges have been issued against the defendant and/or which defense may be the most powerful, the value of a skilled attorney with experience handling allegations of sexual assault cases cannot be underestimated given the potential penalties. Attorney Daniel Cappetta has such experience and will stop at nothing to find and present the best possible defense for all his clients, particularly where the consequences of a conviction are so incredibly serious. Attorney Cappetta understands that swift and thorough investigation, expert consultation, and persuasive presentation and argument to a jury are all crucial pieces of a defense, and undertakes each of these responsibilities for all his clients. If you or a loved one is facing one of the above referenced charges, contact Massachusetts criminal defense attorney Daniel Cappetta today for a free consultation and put his extensive experience to work for you.