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; or
2. 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.
Code 1950, § 18.1-44; 1960, c. 358; 1972, c. 394; 1975, cc. 14, 15, 606; 1981, c. 397; 1982, c. 506; 1986, c. 516; 1994, cc. 339, 772, 794; 1997, c. 330; 1999, c. 367; 2002, cc. 810, 818; 2005, c. 631; 2006, cc. 853, 914; 2012, cc. 575, 605; 2013, cc. 761, 774.
Notes of Decisions
Cited in
402
cases (
108 in the last 5 years), 1978–2026 · leading case:
Molina v. Commonwealth, 624 S.E.2d 83 (Va. Ct. App. 2006).
Molina v. Commonwealth, 624 S.E.2d 83 (Va. Ct. App. 2006).
· cites it 77× “I believe the jury was misled by an instruction that the Commonwealth offered *103 which provided in the disjunctive two additional theories under Code § 18.2-61 to convict of rape: that the rape was accomplished through the complaining witness' physical helplessness or that the…”
Ragsdale v. Commonwealth, 565 S.E.2d 331 (Va. Ct. App. 2002).
· cites it 32× “2-63, is not a lesser-included offense of rape, under Code § 18.2-61. In the alternative, Ragsdale argues the trial court erred in finding the evidence sufficient as a matter of law to support the conviction.”
Gonzales v. Commonwealth, 611 S.E.2d 616 (Va. Ct. App. 2005).
· cites it 24× “In that decision, a divided panel of this Court reversed Gonzales' conviction for rape in violation of Code § 18.2-61 and forcible sodomy in violation of Code § 18.”
Nobrega v. Com., 628 S.E.2d 922 (Va. 2006).
· cites it 12× “In an unpublished opinion, the Court of Appeals of Virginia affirmed the convictions of Joseph Walter Nobrega in the Circuit Court of the City of Norfolk on two counts of rape of a child under age thirteen, Code § 18.2-61, and two counts of sexual abuse of the same child over…”
Sutton v. Commonwealth, 324 S.E.2d 665 (Va. 1985).
· cites it 16× “Prior to its amendment in 1981, Code § 18.2-61 (Repl.Vol.1975) provided punishment for any person who shall "carnally know a female of thirteen years of age or more against her will, by force.”
Weishaupt v. Commonwealth, 315 S.E.2d 847 (Va. 1984).
· cites it 24× “This appeal raises an issue of first impression in the Commonwealth: whether a husband can be guilty of raping his wife, in violation of Code § 18.2-61, where, at the time of the alleged offense, the parties were living separate and apart.”
Breeden v. Commonwealth, 596 S.E.2d 563 (Va. Ct. App. 2004).
· cites it 10× “Charles Allen Breeden was convicted in a bench trial of several offenses, among them rape, in violation of Code § 18.2-61; use of a firearm in the commission of a felony, in violation of Code § 18.”
Ortiz v. Com., 667 S.E.2d 751 (Va. 2008).
· cites it 6× “Sebastian Ortiz was convicted by a jury in the Circuit Court of Arlington County of one count of rape of a female child under the age of thirteen in violation of Code § 18.2-61. Ortiz appealed his conviction to the Court of Appeals, which denied Ortiz' petition in an unpublished…”
Morse v. Commonwealth, 440 S.E.2d 145 (Va. Ct. App. 1994).
· cites it 12× “In contrast, Code § 18.2-61 provides that the crime of rape occurs where the act of sexual intercourse is accomplished against the victim’s will “by force, threat or intimidation.”
Wactor v. Commonwealth, 564 S.E.2d 160 (Va. Ct. App. 2002).
· cites it 4× “Object sexual penetration may be analogized to the crimes of rape (Code § 18.2-61), forcible sodomy (Code § 18.”
Crawford v. Com., 704 S.E.2d 107 (Va. 2011).
· cites it 6× “In order to obtain a conviction against a defendant charged with a violation of Code § 18.2-61, therefore, the Commonwealth must prove beyond a reasonable doubt: (1) that the defendant had sexual intercourse with the victim; (2) that it was against her will and without her…”
Adkins v. Commonwealth, 457 S.E.2d 382 (Va. Ct. App. 1995).
· cites it 18× “(ii) through the use of the complaining witness’s mental incapacity ... he or she shall be guilty of rape.”
— Va. Code Ann. § 18.2-61(8) — 1 case
— Va. Code Ann. § 18.2-61(A) — 48 cases
Molina v. Commonwealth, 624 S.E.2d 83 (Va. Ct. App. 2006).
“I believe the jury was misled by an instruction that the Commonwealth offered *103 which provided in the disjunctive two additional theories under Code § 18.2-61 to convict of rape: that the rape was accomplished through the complaining witness' physical helplessness or that the…”
Ragsdale v. Commonwealth, 565 S.E.2d 331 (Va. Ct. App. 2002).
“2-63, is not a lesser-included offense of rape, under Code § 18.2-61. In the alternative, Ragsdale argues the trial court erred in finding the evidence sufficient as a matter of law to support the conviction.”
Gonzales v. Commonwealth, 611 S.E.2d 616 (Va. Ct. App. 2005).
“In that decision, a divided panel of this Court reversed Gonzales' conviction for rape in violation of Code § 18.2-61 and forcible sodomy in violation of Code § 18.”
— Va. Code Ann. § 18.2-61(A)(1) — 1 case
— Va. Code Ann. § 18.2-61(A)(i) — 19 cases
Molina v. Commonwealth, 624 S.E.2d 83 (Va. Ct. App. 2006).
“I believe the jury was misled by an instruction that the Commonwealth offered *103 which provided in the disjunctive two additional theories under Code § 18.2-61 to convict of rape: that the rape was accomplished through the complaining witness' physical helplessness or that the…”
Gonzales v. Commonwealth, 611 S.E.2d 616 (Va. Ct. App. 2005).
“In that decision, a divided panel of this Court reversed Gonzales' conviction for rape in violation of Code § 18.2-61 and forcible sodomy in violation of Code § 18.”
— Va. Code Ann. § 18.2-61(A)(ii) — 17 cases
Molina v. Commonwealth, 624 S.E.2d 83 (Va. Ct. App. 2006).
“I believe the jury was misled by an instruction that the Commonwealth offered *103 which provided in the disjunctive two additional theories under Code § 18.2-61 to convict of rape: that the rape was accomplished through the complaining witness' physical helplessness or that the…”
Adkins v. Commonwealth, 457 S.E.2d 382 (Va. Ct. App. 1995).
“(ii) through the use of the complaining witness’s mental incapacity ... he or she shall be guilty of rape.”
— Va. Code Ann. § 18.2-61(A)(iii) — 20 cases
Nobrega v. Com., 628 S.E.2d 922 (Va. 2006).
“In an unpublished opinion, the Court of Appeals of Virginia affirmed the convictions of Joseph Walter Nobrega in the Circuit Court of the City of Norfolk on two counts of rape of a child under age thirteen, Code § 18.2-61, and two counts of sexual abuse of the same child over…”
— Va. Code Ann. § 18.2-61(B) — 10 cases
Morse v. Commonwealth, 440 S.E.2d 145 (Va. Ct. App. 1994).
“In contrast, Code § 18.2-61 provides that the crime of rape occurs where the act of sexual intercourse is accomplished against the victim’s will “by force, threat or intimidation.”
— Va. Code Ann. § 18.2-61(B)(2) — 11 cases
— Va. Code Ann. § 18.2-61(B)(2)(2012) — 1 case
— Va. Code Ann. § 18.2-61(B)(i) — 1 case
— Va. Code Ann. § 18.2-61(C) — 3 cases
— Va. Code Ann. § 18.2-61(a)(ii) — 1 case
— Va. Code Ann. § 18.2-61(a)(iii) — 1 case
— Va. Code Ann. § 18.2-61(iii) — 1 case
Annotations are extracted automatically from the opinions in the
Syfert caselaw corpus and ranked by authority, recency, and
treatment. Dots show Syfertize treatment of the citing case itself.