Yes, he knew she was underage even if he didn't know she was 13. She was not a virgin and she had done drugs and alcohol before (but claims not at the same time).
And even if he didn't, the victim at the time testified to the grand jury (you can read it
here) that he refused to stop at her request. So even if she had been 44 as well it would have been rape.
Here's a recap of her grand jury testimony. Never really been denied and worth keeping in mind when deciding how much sympathy he deserves.
Spoiler in case you don't want to read it.
Spoiler:
Quote:
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Originally Posted by A recap of grand jury testimony
First session he took photos of her topless. She was uncomfortable enough with this that she didn't want to do it again but not so much that she protested, refused, or told anyone. But when he asked her again she did go. First to a house with other people, then to Jack Nicholson's house where the one woman present left shortly after they arrived.
She did not protest when he gave her champagne. He had her pose topless again. He then gave her part of a Quaalude after calling her mother to say he'd be bring her back late. She did not protest the Quaalude. By this time she's down to just her panties.
He then asked her to pose for him in a jacuzzi, completely nude. She still hasn't yet protested. She's still drinking champagne as well.
He then said it was too dark for photographs. So he got naked and joined her in the jacuzzi. This is when she starts to protest. She moves to the opposite side and he tells her to come over to him.
She says no, lies that she has asthma and needs to get out. Finally he coaxes her over and he puts his arm around her waist. She finally gets out.
He moves to the larger swimming pool and coaxes her into that as well though she quickly exists and goes to a bathroom to dry off and dress.
He follows her. She asks to be taken home so she can take her asthma medicine (lying). He demurs. She says she wants to go right now. He tells her to go into the other room and lie down.
At this point she says she is afraid of him and really wants to go home. She refused to go into the bedroom and goes into the living instead. He follows, she's still in just underwear.
She asks to be taken home again. Instead he kisses her. She tells him to keep away. She says she asks again to go home, she's afraid and realizing they're alone. He then performs "cuddliness" on her (the word in the transcript), meaning cunnilingus. She says while he is doing this she is saying "No. Come on. Stop it." She doesn't know what he says at this point. She was blocking him out.
He then began vaginal intercourse. She again says "No, stop" but says she wasn't fighting hard because she was alone and had nowhere to go. He asks about her period, when she says it was a week or so earlier he then asks if he should perform anal sex instead.
She says she said no. But he did it anyway.
Then someone came to the house. He stopped to deal with that person. She took advantage of that to start getting dressed again but he returned, resumed sex and ejaculated.
She then dresses, leaves the house and sits in the car crying until he came out and took her home.
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So, even if she had been legal, was she raped? I'd say by most definitions, yes.