8/23/2012For Educational Use Only510.040 Rape in the first degree, KY ST § 510.040
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Baldwin's Kentucky Revised Statutes AnnotatedTitle L. Kentucky Penal CodeChapter 510. Sexual Offenses (Refs & Annos)KRS § 510.040510.040 Rape in the first degreeCurrentness
(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; or2. 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 physicalinjury in which case it is a Class A felony.
HISTORY: 1974 c 406, § 84, eff. 1-1-75
Editors' NotesKENTUCKY CRIME COMMISSION/LRC COMMENTARY1974:
Rape under former Kentucky law consisted of two stated degrees (rape of child under 12 and rape of female over 12) and oneimplied 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 implieddegree (sexual misconduct). Although substantively the crime of rape has not been changed, this revision achieves a moreequitable 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 thefirst degree. Subsection (1)(a) prohibits sexual intercourse with another person by forcible compulsion as that term is definedin KRS 510.010(2). The essential element under subsection (1)(a) is the use of force. Force is not restricted to physical forcebut includes a threat that overcomes earnest resistance and places the victim in fear of immediate death, physical injury orkidnapping of himself or another person. The ages of the defendant and the victim are immaterial. Except in cases of statutoryrape, 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 helplessas that term is defined in KRS 510.010(6). The essential element under subsection (1)(b)(i) is that the victim must be physicallyhelpless. Force is not an essential element of this offense, and the ages of the defendant and the victim are immaterial. Thevictim is statutorily incapable of consent; therefore, evidence relating to the victim's prior unchastity would not be relevant or