Virginia Rape Laws and Defenses Explained by Criminal Defense Lawyer

Virginia Rape Law

Rape is a serious felony offense under Virginia Law 18.2-61. It is punished by a maximum penalty of life imprisonment, with a minimum penalty of five years in prison.

Adult rape is defined as having sexual intercourse with another, against their will, by force, threat, or intimidation. The force, threat, or intimidation element is judged through the subjective viewpoint of the victim.

Rape can be proven by the victim’s testimony, physical evidence of injury, defensive wounds, witness accounts, forensic evidence, computer or digital communications, circumstantial evidence, or any other way that is admissible in court.

Penetration is an essential element of the crime of rape; proof of penetration, however slight the entry may be, is sufficient. (Compare to sexual battery, which does not require proof of penetration.) The presence of sperm in vagina alone is sufficient to support the finding that penetration occurred.

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This article is written award-winning Virginia criminal defense attorney Marina Medvin, law offices in Alexandria and in Fairfax VA. If you are being investigated for rape or sexual assault, or if a loved one has been arrested for rape or sexual assault, time is of the essence. Call us to inquire about a consultation.

In order to prove force sufficient to support a rape conviction, force must be used to overcome the victim’s will. There must be evidence of some array or show of force in a form sufficient to overcome resistance. As used in the statute, threat means the expression of an intention to do bodily harm. Intimidation may occur without threats. Intimidation, as used in the statute, means putting a victim in fear of bodily harm by exercising such domination and control of her to overcome her mind and overbear her will. Intimidation may be caused by the imposition of psychological pressure on one who, under the circumstances, is vulnerable and susceptible to such pressure. This fear of bodily harm must derive from some conduct or statement of the accused. The Accused must put the victim in fear of bodily harm by exercising such domination and control of her to overcome her mind and overbear her.

In a famous Virginia case, a man threatened to kill himself with a gun and used a combination of threats and force to intimidate the victim into sex. He held a gun the entire time and used physical force against her, including pushing her, hitting her face, and kicking her buttocks, and repeatedly threatened to kill himself. The court found him guilty of rape.

Rape can also be proven through the use of the victim’s mental incapacity or physical helplessness.

Rape is also automatic when it is with a child under age 13.

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Virginia Rape Defenses

Consent. Consensual sexual intercourse is always a defense to rape. This defense is complicated by the standard problem of he said / she said. The fact-finder, a jury or a judge, will decide who to believe. Submission through fear to sexual intercourse is not consent.

False accusation. A false rape accusation is more common than you may realize. Sexual partners are sometimes faced with regret or despair after a consensual act. They then go on to create a false rape accusation that may turn into criminal charges.

Marriage is NOT in itself a defense to rape.

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Rape Case Resolution

A rape investigation can be nipped at the bud if you hire a lawyer before speaking to law enforcement. Moreover, your lawyer can negotiate an outcome prior to charges being filed, and can reduce the charge before it is even brought.

Prosecutors are sometimes hesitant to negotiate, due to victim’s wishes, and other times happy to negotiate because the victim is embarrassed and does not wish to move forward with prosecution.

Alexandria Virginia Rape Investigation Resulted in No Charges

Arlington VA Rape Investigation Results in NO CHARGES

 Virginia Rape Laws

Virginia Law § 18.2-61. Rape.

A. If any person has sexual intercourse with a complaining witness, whether or not his or her spouse, or causes a complaining witness, whether or not his or her spouse, to engage in sexual intercourse with any other person and such act is accomplished (i) against the complaining witness’s will, by force, threat or intimidation of or against the complaining witness or another person; or (ii) through the use of the complaining witness’s mental incapacity or physical helplessness; or (iii) with a child under age 13 as the victim, he or she shall be guilty of rape.B. A violation of this section shall be punishable, in the discretion of the court or jury, by confinement in a state correctional facility for life or for any term not less than five years; and in addition:1. For a violation of clause (iii) of subsection A where the offender is more than three years older than the victim, if done in the commission of, or as part of the same course of conduct as, or as part of a common scheme or plan as a violation of (i) subsection A of § 18.2-47 or § 18.2-48, (ii) § 18.2-89, 18.2-90, or 18.2-91, or (iii) § 18.2-51.2, the punishment shall include a mandatory minimum term of confinement of 25 years; or2. For a violation of clause (iii) of subsection A where it is alleged in the indictment that the offender was 18 years of age or older at the time of the offense, the punishment shall include a mandatory minimum term of confinement for life.The mandatory minimum terms of confinement prescribed for violations of this section shall be served consecutively with any other sentence. If the term of confinement imposed for any violation of clause (iii) of subsection A, where the offender is more than three years older than the victim, is for a term less than life imprisonment, the judge shall impose, in addition to any active sentence, a suspended sentence of no less than 40 years. This suspended sentence shall be suspended for the remainder of the defendant’s life, subject to revocation by the court.

There shall be a rebuttable presumption that a juvenile over the age of 10 but less than 12, does not possess the physical capacity to commit a violation of this section. In any case deemed appropriate by the court, all or part of any sentence imposed for a violation under this section against a spouse may be suspended upon the defendant’s completion of counseling or therapy, if not already provided, in the manner prescribed under § 19.2-218.1 if, after consideration of the views of the complaining witness and such other evidence as may be relevant, the court finds such action will promote maintenance of the family unit and will be in the best interest of the complaining witness.

C. Upon a finding of guilt under this section, when a spouse is the complaining witness in any case tried by the court without a jury, the court, without entering a judgment of guilt, upon motion of the defendant who has not previously had a proceeding against him for violation of this section dismissed pursuant to this subsection and with the consent of the complaining witness and the attorney for the Commonwealth, may defer further proceedings and place the defendant on probation pending completion of counseling or therapy, if not already provided, in the manner prescribed under § 19.2-218.1. If the defendant fails to so complete such counseling or therapy, the court may make final disposition of the case and proceed as otherwise provided. If such counseling is completed as prescribed under § 19.2-218.1, the court may discharge the defendant and dismiss the proceedings against him if, after consideration of the views of the complaining witness and such other evidence as may be relevant, the court finds such action will promote maintenance of the family unit and be in the best interest of the complaining witness.

 Virginia Law § 18.2-67.5. Attempted rape, forcible sodomy, object sexual penetration, aggravated sexual battery, and sexual battery.

A. An attempt to commit rape, forcible sodomy, or inanimate or animate object sexual penetration shall be punishable as a Class 4 felony.B. An attempt to commit aggravated sexual battery shall be a felony punishable as a Class 6 felony.C. An attempt to commit sexual battery is a Class 1 misdemeanor.

 Virginia Law § 18.2-90. Entering dwelling house, etc., with intent to commit murder, rape, robbery or arson; penalty.

If any person in the nighttime enters without breaking or in the daytime breaks and enters or enters and conceals himself in a dwelling house or an adjoining, occupied outhouse or in the nighttime enters without breaking or at any time breaks and enters or enters and conceals himself in any building permanently affixed to realty, or any ship, vessel or river craft or any railroad car, or any automobile, truck or trailer, if such automobile, truck or trailer is used as a dwelling or place of human habitation, with intent to commit murder, rape, robbery or arson in violation of §§ 18.2-77, 18.2-79 or § 18.2-80, he shall be deemed guilty of statutory burglary, which offense shall be a Class 3 felony. However, if such person was armed with a deadly weapon at the time of such entry, he shall be guilty of a Class 2 felony.

 Virginia Sex Crime Registry Law § 9.1-901. Persons for whom registration required.

A. Every person convicted on or after July 1, 1994, including a juvenile tried and convicted in the circuit court pursuant to § 16.1-269.1, whether sentenced as an adult or juvenile, of an offense set forth in § 9.1-902 and every juvenile found delinquent of an offense for which registration is required under subsection G of § 9.1-902shall register and reregister as required by this chapter. Every person serving a sentence of confinement on or after July 1, 1994, for a conviction of an offense set forth in § 9.1-902 shall register and reregister as required by this chapter. Every person under community supervision as defined by § 53.1-1 or any similar form of supervision under the laws of the United States or any political subdivision thereof, on or after July 1, 1994, resulting from a conviction of an offense set forth in § 9.1-902 shall register and reregister as required by this chapter.B. Every person found not guilty by reason of insanity on or after July 1, 2007, of an offense set forth in § 9.1-902 shall register and reregister as required by this chapter. Every person in the custody of the Commissioner of Behavioral Health and Developmental Services, or on conditional release on or after July 1, 2007, because of a finding of not guilty by reason of insanity of an offense set forth in § 9.1-902 shall register and reregister as required by this chapter.C. Unless a specific effective date is otherwise provided, all provisions of the Sex Offender and Crimes Against Minors Registry Act shall apply retroactively. This subsection is declaratory of existing law.

 Learn more about Virginia rape and sexual battery law.

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Written by an award-winning criminal defense attorney specializing in state and federal criminal law in the state and federal courts of Northern Virginia and Washington DC.

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