2006 Code of Virginia § 18.2-61 - Rape

18.2-61. Rape.

A. If any person has sexual intercourse with a complaining witness, whetheror not his or her spouse, or causes a complaining witness, whether or not hisor her spouse, to engage in sexual intercourse with any other person and suchact is accomplished (i) against the complaining witness's will, by force,threat or intimidation of or against the complaining witness or anotherperson; or (ii) through the use of the complaining witness's mentalincapacity or physical helplessness; or (iii) with a child under age 13 asthe victim, he or she shall be guilty of rape.

B. A violation of this section shall be punishable, in the discretion of thecourt or jury, by confinement in a state correctional facility for life orfor any term not less than five years; the penalty for a violation ofsubdivision A (iii), where the offender is more than three years older thanthe victim, if done in the commission of, or as part of the same course ofconduct 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, shall include a mandatory minimum term of confinementof 25 years. If the term of confinement imposed for any violation ofsubdivision A (iii), where the offender is more than three years older thanthe victim, is for a term less than life imprisonment, the judge shallimpose, in addition to any active sentence, a suspended sentence of no lessthan 40 years. This suspended sentence shall be suspended for the remainderof the defendant's life, subject to revocation by the court.

There shall be a rebuttable presumption that a juvenile over the age of 10but less than 12, does not possess the physical capacity to commit aviolation of this section. In any case deemed appropriate by the court, allor part of any sentence imposed for a violation under this section against aspouse may be suspended upon the defendant's completion of counseling ortherapy, if not already provided, in the manner prescribed under 19.2-218.1if, after consideration of the views of the complaining witness and suchother evidence as may be relevant, the court finds such action will promotemaintenance of the family unit and will be in the best interest of thecomplaining witness.

C. Upon a finding of guilt under this section, when a spouse is thecomplaining 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 hasnot previously had a proceeding against him for violation of this sectiondismissed pursuant to this subsection and with the consent of the complainingwitness and the attorney for the Commonwealth, may defer further proceedingsand place the defendant on probation pending completion of counseling ortherapy, 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 otherwiseprovided. If such counseling is completed as prescribed under 19.2-218.1,the court may discharge the defendant and dismiss the proceedings against himif, after consideration of the views of the complaining witness and suchother evidence as may be relevant, the court finds such action will promotemaintenance of the family unit and be in the best interest of the complainingwitness.

(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.)