PITTMAN CALEB 8/23/2012 For Educational Use Only

510.040 Rape in the first degree, KY ST 510.040

Baldwin's Kentucky Revised Statutes Annotated Title L. Kentucky Penal Code Chapter 510. Sexual Offenses (Refs & Annos) KRS 510.040 510.040 Rape in the first degree Currentness (1) A person is guilty of rape in the first degree when: (a) He engages in sexual intercourse with another person by forcible compulsion; or (b) He engages in sexual intercourse with another person who is incapable of consent because he: 1. Is physically helpless; or 2. Is less than twelve (12) years old. (2) Rape in the first degree is a Class B felony unless the victim is under twelve (12) years old or receives a serious physical injury in which case it is a Class A felony. Credits HISTORY: 1974 c 406, 84, eff. 1-1-75 Editors' Notes KENTUCKY CRIME COMMISSION/LRC COMMENTARY 1974: Rape under former Kentucky law consisted of two stated degrees (rape of child under 12 and rape of female over 12) and one implied degree (carnal knowledge of a female child under 18 with her consent or of a male child under 18). KRS 510.040, 510.050, 510.060 and 510.140 divide the crime into three stated degrees (first, second or third degree rape) and one implied degree (sexual misconduct). Although substantively the crime of rape has not been changed, this revision achieves a more equitable formulation of the elements of each degree with the consonant equity of punishment. Rape in the first degree: KRS 510.040 presents three factual situations in which an accused is deemed guilty of rape in the first degree. Subsection (1)(a) prohibits sexual intercourse with another person by forcible compulsion as that term is defined in KRS 510.010(2). The essential element under subsection (1)(a) is the use of force. Force is not restricted to physical force but includes a threat that overcomes earnest resistance and places the victim in fear of immediate death, physical injury or kidnapping of himself or another person. The ages of the defendant and the victim are immaterial. Except in cases of statutory rape, evidence of the victim's prior unchastity is relevant and admissible on the question of consent. Subsection (1)(b)(i) prohibits sexual intercourse with a person who is incapable of consent by reason of being physically helpless as that term is defined in KRS 510.010(6). The essential element under subsection (1)(b)(i) is that the victim must be physically helpless. Force is not an essential element of this offense, and the ages of the defendant and the victim are immaterial. The victim is statutorily incapable of consent; therefore, evidence relating to the victim's prior unchastity would not be relevant or

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PITTMAN CALEB 8/23/2012 For Educational Use Only

510.040 Rape in the first degree, KY ST 510.040

admissible. However, it is a defense under KRS 510.030 that the defendant at the time he engaged in the sexual intercourse did not know of the facts or conditions responsible for the physical helplessness. Subsection (1)(b)(ii) prohibits sexual intercourse with a person who is less than 12 years old. The mere act of sexual intercourse with a child under 12 completes the offense. The age of the defendant is immaterial, but the victim must be less than 12 years old. Conduct of this character is so dangerous to the child that severe penalty is imposed. Neither the use of force nor the lack of consent need to be proved by the state. The victim is statutorily incapable of consenting, and evidence relating to the victim's prior unchastity is not relevant or admissible. However, mistake as to age is a defense under KRS 510.030. Rape in the first degree is classified primarily as a Class B felony; this is in line with the other modern codes. However, where the victim is under 12 years old or receives a serious physical injury, subsection (2) increases the penalty to a Class A felony. KRS 510.040 will make little substantive change in former Kentucky law. The penetration requirement is the same, and no corroboration is required. However, KRS 510.030 allows a defense that the defendant at the time he engaged in the sexual intercourse did not know of the facts or conditions responsible for the victim's incapacity to consent, including age. Rape in the second degree: KRS 510.050 presents another form of statutory rape. This provision prohibits sexual intercourse between a defendant who is 18 years old or more and a victim who is less than 14 years old. Under KRS 510.050 the ages of both the defendant and the victim are material. The defendant must be at least 18 years old. The victim must be 12 or 13 years old, therefore statutorily incapable of consent. Evidence relating to the victim's prior unchastity is not relevant or admissible. Force is not an essential element of this offense. Under KRS 510.050 the victim is not mentally defective, mentally incapacitated or physically helpless. However, it is a defense under KRS 510.030 that the defendant did not know that the victim was less than 14 years old. If the victim is less than 12 years old, such conduct constitutes rape in the first degree. If the victim is 14 or 15 years old and the defendant is 21 years old or more, the offense constitutes rape in the third degree. If the defendant is less than 18 years old and the victim is 12 to 15 years old or if the defendant is 18 to 20 years old and the victim is 14 to 15 years old, the conduct constitutes sexual misconduct. KRS 510.050 makes little substantive change in prior Kentucky law. The victim is statutorily incapable of consent, and evidence relating to the victim's prior unchastity is not admissible. Force is not an element of this offense and need not be established by the state. However, KRS 510.030 provides a defense for mistake as to age. Rape in the third degree: KRS 510.060(1)(a) prohibits sexual intercourse with another person who is incapable of consent because he is mentally defective as that term is defined in KRS 510.010(4) or because he is mentally incapacitated as that term is defined in 510.010(5). The victim is statutorily incapable of consenting. Therefore, evidence relating to the victim's prior unchastity is not admissible. The ages of the defendant and the victim are immaterial. Force is not an element of this offense, and the victim need not be physically helpless. Under KRS 510.030 it is a defense that the defendant at the time he engaged in the sexual intercourse did not know the facts or conditions responsible for the victim's mental defect or mental incapacity. KRS 510.060(1)(b) prohibits sexual intercourse between an actor who is 21 years old or more and a victim who is less than 16 years old. The difference in age present in this situation is substantial enough so that intercourse of this nature should be escalated from sexual misconduct into the rape category. The ages of both the defendant and the victim are material. The defendant must be 21 years old or more, the victim 14 or 15 years old. The victim is statutorily incapable of consenting; therefore, evidence relating to the victim's prior unchastity is not admissible. Force is not an essential element of this offense, nor is the fact that the victim is mentally defective, mentally incapacitated or physically helpless. However, it is a defense under KRS 510.030 that the defendant at the time he engaged in the sexual intercourse did not know that the victim was less than 16 years old. If the victim is less than 12 years old, such conduct constitutes rape in the first degree. If the victim is less than 14 years old, such conduct constitutes rape in the second degree.

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PITTMAN CALEB 8/23/2012 For Educational Use Only

510.040 Rape in the first degree, KY ST 510.040

KRS 510.060 makes some significant changes in former Kentucky law. The age of consent is reduced to 16. When the victim is deemed incapable of consent by statute, evidence relating to the victim's prior unchastity is not admissible as a mitigating factor as is allowed under certain conditions by Kentucky law. However, it is a defense under KRS 510.030 that the defendant at the time he engaged in the sexual intercourse did not know the facts or conditions responsible for the victim's incapacity to consent. Notes of Decisions (197) KRS 510.040, KY ST 510.040 Current through the end of 2012 legislation
End of Document 2012 Thomson Reuters. No claim to original U.S. Government Works.

2012 Thomson Reuters. No claim to original U.S. Government Works.