Have You Been Charged With Rape In Kentucky?

KENTUCKY LAW ON RAPE

Rape is defined in Kentucky Revised Statutes Chapter 510. 

There are three main types of rape. First, there is engaging in sexual intercourse with another person by forcible compulsion or with someone who is incapable of consent due to physical helplessness or mental helplessness. Mental helplessness can be due to either mental incapacity or intellectual disability. 

Second is a prohibition from sleeping with another person based on the characteristics of that person. What is commonly thought of as statutory rape falls into this category. In the KRS, there are different levels for statutory rape, or conduct that is rape per se, based on the age of the victim or the age of both the victim and the alleged perpetrator. These levels are: 

• When the alleged perpetrator is 21 years old or older and engages in sexual intercourse with another person less than 16 years old 
• When the alleged perpetrator is 10 years older than a person who is 16 or 17 years old at the time of sexual intercourse between the two 

The third category of rape is defined by the alleged perpetrator’s relationship of trust with or power over the victim. Crimes in this category include: 

• When the alleged perpetrator provides a foster family home for the victim and is 21 years old or older and engages in sexual intercourse with another person who is less than 18 years old
• When the alleged perpetrator is in a position of authority or position of special trust 
• When the alleged perpetrator is a jailer, or an employee, contractor, vendor, or volunteer of the Department of Corrections, Department of Juvenile Justice, or a detention facility and knows that the victim is incarcerated, supervised, evaluated, or treated by the Department of Corrections, Department of Juvenile Justice detention facility, or contracting entity, 

SIMILAR CRIMES TO RAPE

Sodomy

Sexual Abuse

Sexual Misconduct

Indecent Exposure 

ELEMENTS OF RAPE

A conviction for rape requires a factual finding of that sexual intercourse did occur and that either there was no consent given by the alleged victim or no legal capability on the part of the alleged victim to give consent. 

DEFINITIONS

The terms forcible compulsion, mental illness, individual with intellectual disability, physically helpless, sexual contact, and sexual intercourse are defined in KRS §510.010.

• Forcible compulsion means physical force of threat of physical force, express or implied, which places a person in fear of immediate death, physical injury to self or another person, fear of the immediate kidnap of self or another person, or fear of any offense in KRS Chapter 510. 
• Mental illness means diagnostic term that covers many clinical categories, typically including behavioral or psychological symptoms, or both, along with impairment of personal and social function, and specifically defined and clinically interpreted through reference to criteria contained in the DSM Third and any subsequent revision thereto, of the American Psychiatric Association. 
• Individual with an intellectual disability means a person with significantly subaverage general intellectual functioning existing concurrently with deficits in adaptive behavior and manifested during the developmental period, as defined in KRS Chapter 202B. 
• Mentally incapacitated means that a person is rendered temporarily incapable of appraising or controlling his or her conduct as a result of the influence of an intoxicating substance administered to him or her without his or her consent or as a result of any other act committed upon or her without his or her consent. 
• Physically helpless means that a person is unconscious or for any other reason is physically unable to communicate unwillingness to an act; this includes a person who has been rendered unconscious or for any other reason is physically unable to communicate an unwillingness to an act as a result of the influence of a controlled substance or legend drug. 
• Sexual contact means the touching of a person’s intimate parts or the touching of the clothing or other material intended to cover the immediate area of a person’s intimate parts, if that touching can be construed by a reasonable person as being don for the purpose of sexual arousal or gratification of either party; for a sexual purpose; or in a sexual manner for the purpose of exacting revenge or retribution, humiliating or degrading, or punishment. 
• Sexual intercourse means sexual intercourse in its ordinary sense and includes penetration of the sex organs for one person by any body part or a foreign object manipulated by another person. Sexual intercourse occurs upon any penetration, however slight; emission is not required. This definition does not include penetration of the sex organ by any body part or a foreign object in the course of the performance of generally recognized health-care practices. 

Foster family home is defined in KRS §600.020(30) as a private home in which children are placed for foster family care under supervision of the cabinet or a licensed child-placing agency. 

Position of authority or position of special trust as defined in KRS §532.045 means, but is not limited to, the position occupied by a biological parent, adoptive parent, stepparent, foster parent, relative, household member, adult youth leader, recreational staff, or volunteer who is an adult, adult athletic manager, adult coach, teacher, classified school employee, certified school employee, counselor, staff, or volunteer for either a residential treatment facility or a detention facility, staff or volunteer with a youth services organization, religious leader, health-care provider, or employer. 

Detention facility is defined in KRS §520.010(4) as any building and its premises used for the confinement of a person: charged with or convicted of an offense, alleged or found to be delinquent, held for extradition or as a material witness, or otherwise confined pursuant to an order of court for law enforcement purposes. 

PENALTY FOR RAPE

Rape in the first degree is a Class B felony and therefore carries a penalty of ten to twenty years incarceration, unless the victim is under 12 years old or receives a serious physical injury in which case it is a Class A felony. Class A felonies carry a penalty of 20 to 50 years to life incarceration. 

Rape in the second degree is a Class C felony and therefore carries a penalty of five to ten years’ incarceration. 

Rape in the third degree is a Class D felony and therefore carries a penalty of one to five years’ incarceration. 

Other penalties for rape convictions include treatment and/or registration as a sex offender. 

DEFENSES TO RAPE

Innocence

Consent

Insanity

NOT DEFENSES TO RAPE

Voluntary intoxication is not a defense to rape because there is not intent element in rape. As a defense, voluntary intoxication only applies to offenses requiring proof of elements of intent or knowledge. Malone v. Com., 636 S.W.2d 647 (Ky. 1982). 

RAPE AS SEEN THROUGH CASE LAW 

Most caselaw deals with the issue/defense of consent because it is the most difficult element to prove. Sexual intercourse can constitute rape, even where the defendant and the victim are spouses. Mayo v. Com., 322 S.W.3d 41, (Ky. 2010). In determining whether the alleged victim is or is not capable of granting consent due to a mental defect, the only question in determining the answer is whether she is capable of appraising the nature of the sexual act being performed. Salsman v. Com., 565 S.W.2d 638 (Ky.App.. 1978). 

Consent does not require that the alleged victim object to the sexual intercourse or resist the perpetrator; it only requires that the sexual act be done without the victim’ consent and against the victim’s will. Bowman v. Commonwealth, 143 S.W. 47 (Ky. 1912). The question of whether the victim remained silent or did not actively resist may be considered when determining whether the act was consensual, but consent is not presumed from mere silence. Ibid. this is especially true where the victim fails to resist or object because she has been terrorized, threatened, or frightened by the alleged perpetrator. Id. 

The concepts of physical helplessness and forcible compulsion, which are required for a first-degree rape conviction, are related to consent. Just because a person could not remember what had happened does not mean that that person was physically helpless. Johnson v. Com., 864 S.W.2d 266 (Ky. 1993). 

To determine whether the alleged victim was forcibly compelled, therefore submitting to the accused due to an implied threat that placed the alleged victim in here, it is the perspective of the alleged victim that matters, not the objective reality. Yates v. Com., 430 S.W.3d 883 (Ky. 2014). The threat creating the forcible compulsion must be of imminent death or physical insurance to the alleged victim or another person. Ibid. The subjective test is whether the alleged victim was terror-stricken at the time she submitted to the defendant. Newcomb v. Com., 410 S.W.3d 63 (Ky. 2013). 

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