Rape is specifically defined by the Virginia code and it’s the same throughout all of Virginia, Fairfax included. In a rape case, the state must prove that the defendant had sexual intercourse with another person or caused another person to engage in sexual intercourse with another person and that it was done against that person’s will or without their consent and that it was done by force, the threat of force or intimidation.
When the commonwealth puts forth their case, they only have to prove these three elements beyond a reasonable doubt.
Those terms are pretty broad and can be proven in many ways. It’s not necessary to stick a knife or gun to someone’s face for rape; general intimidation or threat of intimidation also is sufficient for the Commonwealth to prove that element of a rape charge.
If the charge is the rape of a child under 13 years old, then in addition to those three elements, the Commonwealth must also prove that the victim was under 13 years of age.
There are not many elements that the Commonwealth must prove to convict someone of rape.
There are numerous ways to be charged with rape. The facts of every case are different, and the facts that can lead to the sexual act being “against the will “ of the victim and accomplished by “force, threat of force, or intimidation” can be shown in many different ways. For example, even if someone under 13 gives “consent” for the act, the courts will presume that the consent was invalid if the person was so incapacitated by drugs or alcohol to give consent, if the person was a minor who can’t legally give consent, or if the “consent” was given under duress.
“Intimidation” can be proven by the commonwealth by the relationship of the parties alone. For example, a prison guard may have “consensual” sex with an inmate, but due to the different levels of power, that consent may have been accomplished by implicit “intimidation” of the power of the respective parties. A boss may intimidate an employee in to having sexual intercourse due their power over an employee So there are numerous ways other than just sticking a weapon in someone’s face that someone can be charged with rape.
Rape is punishable in Virginia by five years to life in prison. Aggravating factors are any facts that make the charge worse or more heinous and therefore more deserving of a sentence above the minimum. One statutory aggravating factor is age: if the rape was of a child under 13 years old and the perpetrator was over 18, that aggravating factor requires a minimum of life in jail. Aggravating factors play into the range of punishment someone can face and the actual sentence someone receives.
Another aggravating factor could be the use of a gun or a knife in accomplishing the rape. Certainly, violence and weapons will be aggravating factors that the prosecutor and judge will take into account when imposing a sentence.
In Virginia, if you request a jury trial, not only does the jury determine guilt or innocence, but that also impose the sentence. Any factor that is shocking to the jury can cause them to sentence you much higher than they would otherwise. And those factors are “aggravating factors” because they increase the sentence you receive.