While the term rape is widely used in public and media contexts, the law sets out specific criteria that must be met for conduct to be charged and prosecuted as rape. These include the type of sexual act involved, the issue of consent and the accused’s understanding or belief about whether consent was given.

This article explains how the law draws the line between rape and other forms of sexual violence or sexual assault, and outlines the factors the courts consider when deciding whether an offence has been committed.

Legal definition of rape

Rape is defined by section 1 of the Sexual Offences Act 2003. The offence is committed where a person intentionally penetrates another person’s vagina, anus or mouth with their penis, without that person’s consent and without reasonably believing that they had consented.

The law limits the offence of rape to penile penetration. This means rape can only be committed by someone with male genitalia. Other acts involving sexual penetration with fingers, objects or other parts of the body fall under different offences, such as assault by penetration or sexual assault.

Where the court finds that the person penetrated another without consent, and that the accused either knew there was no consent or acted without a reasonable belief in consent, a charge of rape can follow.

Consent and reasonable belief

Consent is a central feature of the legal definition. Under the law, consent must be given freely and voluntarily, with the capacity and freedom to make that choice. A person cannot consent if they are unconscious, heavily intoxicated, threatened, coerced or manipulated into agreement.

The Crown Prosecution Service must prove two things: that the alleged victim did not consent, and that the accused did not reasonably believe they had. The court will assess what steps, if any, the accused took to confirm that the other person was consenting. A belief based on assumption or formed without care is unlikely to be treated as reasonable. If you are facing this type of allegation, it is important to speak to a solicitor with expertise in sexual offence cases. There are two sides to every story and a strong legal defence means making sure your version of events is heard loud and clear in court.

What makes something count as rape?

To be considered rape, an incident must involve penile penetration and lack of consent. But within this framework, the law covers a wide range of circumstances. These include:

Acquaintance rape

If one person’s sex organ penetrates another without consent, it can be classed as rape regardless of the relationship between the parties. 

Date rape

Date rape typically occurs during a romantic or sexual encounter, and often involves alcohol or drugs. The presence of intoxicants does not excuse forced sexual intercourse, and in many cases it will form part of the prosecution’s evidence that the complainant lacked the capacity to consent. Some people accused of date rape believe that their intentions or actions were misread, but in law, a mistaken assumption about consent may not be enough to avoid liability. These cases are treated seriously by the courts and require detailed legal analysis.

Spousal or marital rape

The law in England and Wales makes it clear that being in a relationship or marriage does not amount to automatic consent. Each instance of sexual activity must be freely agreed to. This means that non-consensual sex between partners can still fall within the definition of rape. While some people continue to view this as a private matter, the law takes a different approach. Courts will consider the facts of the case without drawing assumptions based on relationship status or past behaviour.

Physical force or emotional coercion

Not all rape cases involve visible injuries or acts of overt violence. The absence of physical force does not make penetration legal. Threats, intimidation or psychological pressure can make someone feel unable to say no. In these situations, any apparent agreement may be disregarded. The law acknowledges that coercion can invalidate consent just as much as physical restraint. Allegations of this kind are often complex and may require careful examination of the context in which the incident occurred.

Lack of capacity to consent

The courts have made it clear that a person cannot consent if they lack the ability to make that decision freely. This includes situations where the complainant is asleep, unconscious, heavily intoxicated or affected by mental illness or a learning disability. If the prosecution can show that the complainant did not - or could not - consent, and that the accused did not take reasonable steps to confirm otherwise, a conviction may follow. These cases may rely on medical evidence, CCTV, witness accounts or digital communications to establish what happened and when.

Each of these scenarios may give rise to a prosecution, so long as the core elements - penile penetration, lack of consent and no reasonable belief in consent - are satisfied.

What is not considered rape

Not all serious sexual offences meet the legal definition of rape. The law distinguishes between different acts based on the nature of the contact, the body parts involved and the circumstances. These include:

• Assault by penetration: involves penetration of the vagina or anus with anything other than a penis, without consent.
• Sexual assault: includes any intentional sexual touching without consent, such as groping or forced kissing.
• Causing a person to engage in sexual activity without consent: covers cases where the accused causes someone to perform a sexual act, including on themselves or another person.

Charges under these provisions may be brought where the facts do not meet the narrow criteria for a rape charge but still involve serious forms of sexual abuse or coercion.

Is there such a thing as statutory rape in England?

The term statutory rape is not used in English law, but the idea behind it - criminalising sexual activity with someone below the age of consent - is addressed under the Sexual Offences Act 2003.

Sexual activity with anyone under the age of 16 is a criminal offence in England and Wales, regardless of apparent consent. Children aged 13 to 15 are not legally capable of consenting to sexual activity, and the law provides a number of offences to address conduct involving this age group.

If there is evidence of penile penetration without consent, a charge of rape may be brought. In other situations - including where the activity involved mutual touching or non-penetrative acts – the CPS may bring charges such as sexual activity with a child or causing a child to engage in sexual activity. These offences remain serious, particularly where there is a significant age gap or an abuse of trust.

Understanding how the law defines these distinctions is important for anyone facing investigation. While the offences are serious in any scenario, the specific charge and the way the court handles the case will depend on several factors - including the ages of those involved, intent, conduct, and the relationship between the parties involved. If you are concerned about such allegations, early legal advice is strongly advised.

What happens after a rape allegation is made?

If someone reports an incident of rape to the police, an investigation will usually begin immediately. This may involve a forensic medical examination (sometimes referred to as a “rape kit”), taking statements, reviewing digital communications and attempting to locate CCTV or witness evidence. The complainant may also be referred to a sexual health clinic or mental health support service.

If the police believe there is enough evidence, the case will be passed to the Crown Prosecution Service, who will decide whether charges should be brought. The test is whether there is a realistic prospect of conviction and whether it is in the public interest to prosecute.

If charged, the accused will usually appear in the Crown Court, as rape is an indictable-only offence. Bail may be granted, but it often comes with strict conditions. In the meantime, the accused is advised not to contact the complainant or comment publicly on the case.

Why legal representation makes a difference

Being charged with rape carries long-term legal, personal and reputational consequences. As well as the risk of imprisonment, conviction brings automatic registration as a sex offender and may lead to a Sexual Harm Prevention Order or other restrictions. These outcomes can have a lasting effect on a person’s freedom, relationships and future prospects.

At Tyler Hoffman, our solicitors are specialists in defending crimes of a sexual nature. We will scrutinise the evidence against you, and look at the way your case has been handled, to identify weaknesses and inconsistencies. We will fiercely protect your rights, and make sure your side of the story is fully presented in court, with all mitigating circumstances clearly communicated.