Laws about rape
Encyclopedia
Rape is a type of sexual assault
initiated by one or more persons against another person without that person's consent
. The act may be carried out by force, under threat, or with a person who is incapable of valid consent. It is the name of a statutory crime
in jurisdictions such as England and Wales
, Northern Ireland
, Scotland
, California
, and New York State, and is a legal term of art used in the definition of the offence of sexual violation in New Zealand
. Some countries have changed the crimes covered by rape to the term sexual assault, including Canada
.
Definitions of "rape" vary, and though rape is usually dependent upon on whether or not consent was present during the act, the term "consent" varies as well. Minors
, for example, are often considered too young to consent to sexual relations with older persons (see statutory rape
and age of consent
). Consent is also considered invalid if obtained under duress
, or from a person who does not have the ability to understand the nature of the act, due to factors such as young age, mental disability, or substance intoxication.
and the Sexual Offences Act 2003
or an offence against the person
.For example, by the Offences against the Person Act 1828
, the Offences against the Person Act 1861
and the Visiting Forces Act 1952
Rape may also be characterized as a form of aggravated assault or battery
, or both, indecent assault
For example, in England and Wales
before the enactment of the Sexual Offences Act 2003: R v Hodgson [1973] QB 565 (indecent assault on a woman held to be an alternative verdict to rape in a case where the accused was acquitted of rape on grounds of the consent of the victim, who was aged under 16, which was not, by virtue of section 14(2) of the Sexual Offences Act 1956, a defence to indecent assault) or sexual assault
For example, in England and Wales
after the enactment of the Sexual Offences Act 2003
or battery, or both.
with another person. Depending on the jurisdiction, the actus reus
of rape may consist of "having carnal knowledge
of" a woman,For example, under the common law
of England
, and at common law in Scotland
or "having sexual intercourse with" a woman (including a girl) specifically,For example, under the Sexual Offences (Amendment) Act 1976
as read with section 46 of the Sexual Offences Act 1956
or either a woman or a man (including a girl or a boy) generally,For example, under section 1 of the Sexual Offences Act 1956
, as substituted by section 142 of the Criminal Justice and Public Order Act 1994
, and read with section 46 of the former mentioned Act or engaging in sexual intercourse with a person (which term includes a hermaphrodite
who might arguably be neither a woman nor a man)For example, under section 261 of the California Penal Code, or having "sexual connection" with a person effected by penile penetration of that person's genitalia,For example, under section 128(2) of the Crimes Act 1961
or penile penetration of the vagina, anus or mouth (these terms construed as including surgically constructed organs) of a person.For example, under section 1 of the Sexual Offences Act 2003
element in the law regarding rape
, (i.e. the accused must be aware that the victim is not consenting or might not be consenting), and in how they place the onus of proof with regard to belief of consent.
or so as to require proof that it was done either without their consent or, alternatively, against their will.For example, by section 261 of the California Penal Code
There is not always a requirement that the victim did not consent. In the England and Wales, section 5 of the Sexual Offences Act 2003
creates the offence of "rape of a child under 13" and contains no reference to consent. After describing the sexual act the offence prohibits, the explanatory notes to the Act say "whether or not the child consented to this act is irrelevant".
of England
. That offence became an offence under the law of other countries, including Australia
and the United States
, as a result of colonisation or conquest, or following cession (see British Empire
). It is discussed at Rape in English law#History.
Under this law rape traditionally describes the act of one party forcing another to have sexual intercourse
with him or her. Common law rape required the utmost physical resistance by the victim, as well as substantial force by the defendant. The common law crime of rape was collectively adopted by the American colonies in the seventeenth and eighteenth centuries. Until the late twentieth century, spousal rape
was not considered a true rape case because the woman was traditionally viewed as the property of her husband. Hence, both spouses were deemed to have consented to a life-long sexual relationship through the wedding vows. However, with changes to the marital rape exemption, as well as with the significant development of women's rights, the belief of a marital right to sexual intercourse has become less widely held.
Rape was also an offence at common law in Scotland
. This offence was not derived from the English offence as Scotland retained its own system of criminal law under the terms of the Acts of Union 1707
.
against spousal rape. They now include spousal rape (vagina
l intercourse), and acts of sexual violence, such as forced anal intercourse which were traditionally dealt with under sodomy law
s, in their definitions of "rape". In 2006, it was estimated that spousal rape could be prosecuted in at least 104 states (in 4 of these countries, marital rape could be prosecuted only when the spouses were judicially separated). http://www.cities-localgovernments.org/uclg/upload/docs/notaminutemore-endingviolenceagainstwomen.pdf In many countries it is not clear if spousal rape may or may not be prosecuted under ordinary rape laws. Several countries in Eastern Europe
and Scandinavia
made spousal rape illegal before 1970, but other countries from the Western World
outlawed it much later, mostly in the 1980s and 1990s. In the US spousal rape is illegal in all 50 states; the first state to outlaw it was South Dakota
in 1975, and the last North Carolina
in 1993. Other developing countries have outlawed it in the 2000s.
, for instance, could apply the death penalty
in cases of aggravated rape indicating the severity with which the crime was viewed. Castration
is sometimes a punishment for rape and, controversially, some U.S. jurisdictions allow shorter sentences for sex criminals who agree to voluntary chemical castration
.
Prison sentences for rape are not uniform. A study made by the U.S. Department of Justice of prison releases in 1992, involving about 80 percent of the prison population, found that the average sentence for convicted rapists was 11.8 years, while the actual time served was 5.4 years. This follows the typical pattern for violent crimes in the US, where those convicted typically serve no more than half of their sentence.
Between 2002 and 2003, more than one in ten convicted rapists in Victoria, Australia
, served a wholly suspended sentence
, and the average total effective sentence for rape was seven years.
While the practice is condemned as barbaric by many present-day societies, some societies punish the victims of rape as well as the perpetrators. According to such cultures, being raped dishonors the victim and, in many cases, the victim's family. In some cultures rape victims are sometimes killed to restore honor to the family's name.
In the Shakespeare
drama
Titus Andronicus
, Titus Andronicus kills his raped, maimed daughter in what he believes to be a mercy killing.
Rape and cultural views:
Certain cultures have historically promoted a system of honor, dishonor and shame, which was applied with particular strictness to females. A victim of rape would be considered to have lost her honorable reputation and place in society, a loss of honor which entailed shame
on the woman's family
group as well. In early ancient Rome
, ancient China, and other cultures, a pressure has existed which has led women to commit suicide after becoming victims of rape. The iconic Roman instance is that of Lucretia
. Likewise, suicide of female rape victims for reasons of shame is also historically documented in Chinese and Japanese culture http://www.theophoretos.hostmatrix.org/chinesepatriarchy.htm. The "logic" of the loss of honor was largely an extension of the ingrained view of women as commodities for men to consume. Other views would indicate that issues pertaining to paternity may have been more of an issue than damaged goods. The implication belying the practice is also that women did not biologically lust and thus would not/could not choose to have a sexual experience of her own accord, thus providing a justification for women as bartered products.
Sexual assault is defined as sexual contact with another person without that other person's consent. Consent is defined in section 273.1(1) as "the voluntary agreement of the complainant to engage in the sexual activity in question". For more details, see Sexual assault#Canada.
Any act of sexual penetration, whatever its nature, committed against another person by violence, constraint, threat or surprise, is rape. Rape is punished by a maximum of fifteen years' criminal imprisonment.
Rape is punished by a maximum of twenty years' criminal imprisonment in certain aggravating factors (including victim under age of 15).
Rape is punished by a maximum of thirty years' criminal imprisonment where it caused the death of the victim.
Rape is punished by a maximum of imprisonment for life when it is preceded, accompanied or followed by torture or acts of barbarity.
Article 128 (3) outlaws "unlawful sexual connection" (which refers to sexual acts other than those described in 128 (2) - i.e without the penetration of genitalia by the penis - committed under the same circumstances of 128 (2).
Article 128 (4) makes it clear that spousal rape is illegal: "One person may be convicted of the sexual violation of another person at a time when they were married to each other."
128A Allowing sexual activity does not amount to consent in some circumstances
(1) A person does not consent to sexual activity just because he or she does not protest or offer physical resistance to the activity.
(2) A person does not consent to sexual activity if he or she allows the activity because of— force applied to him or her or some other person; or the threat (express or implied) of the application of force to him or her or some other person; or the fear of the application of force to him or her or some other person.
(3) A person does not consent to sexual activity if the activity occurs while he or she is asleep or unconscious.
(4) A person does not consent to sexual activity if the activity occurs while he or she is so affected by alcohol or some other drug that he or she cannot consent or refuse to consent to the activity.
(5) A person does not consent to sexual activity if the activity occurs while he or she is affected by an intellectual, mental, or physical condition or impairment of such a nature and degree that he or she cannot consent or refuse to consent to the activity.
(6) One person does not consent to sexual activity with another person if he or she allows the sexual activity because he or she is mistaken about who the other person is.
(7) A person does not consent to an act of sexual activity if he or she allows the act because he or she is mistaken about its nature and quality.
(8) This section does not limit the circumstances in which a person does not consent to sexual activity.
(9) For the purposes of this section,—
Attempted sexual violation and assault with intent to commit sexual violation are also punished (Article 129).
Article 129A is entitled Sexual conduct with consent induced by certain threats and makes it illegal for a person to have sexual connection with another person or to do an indecent act on another person when the accused knows that the other person has been induced to consent to the connection/act by threat. However a person is guilty of this crime "if (and only if) he or she knows that the other person has been induced to consent" to the sexual connection/indecent act "by an express or implied threat". Subsection (5), (a), (b), (c) of this article defines "threat" for the purpose of this article.
Article 135 outlaws Indecent assault. Article 138 outlaws Sexual exploitation of person with significant impairment.
When any of these circumstances occur, a person guilty of rape is punishable with up to 10 years imprisonment. (Penal Code § 192)
However, if the sexual intercourse was penetration or the person charged himself induced unconsciousness or inability to resist action to receive sexual intercourse, the prison sentence is instead increased to at least 2 years, with the statutory maximum punishment of 15 years.
As well, the same section defines aggravated rape as a rape committed
The section recognizes sexually transmitted disease
s (defined in the Infection Protection Act) as grievous bodily harm.
In November 2008, Agder Court of Appeal
stated that rape under point 2 often lead to a lower punishment (the court itself gave a 27-year old man 2 years imprisonment for such a crime). As well, the general trend in sentences is on average 3 years imprisonment for rape. Minister for Justice Knut Storberget
have stated that he himself is positive to increasing sentences for rape to minimum 3 years imprisonment, as there currently are works on establishing a new Penal Code.
Rape: When And How Committed. - Rape is committed:
Chapter 3 of this Code, which relates to rape, was inserted by the Anti-Rape Law of 1997. By section 2 of that Act, the crime of rape is classified as a crime against persons under that Code.
l intercourse using violence or threat of violence or if the victim is in a helpless state. The other forms of a violent sexual intercourse (male-male, female-male, female-female and non-vaginal male-female) are called "coercive sexual actions" and are punishable by the Article 132. These two crimes, however, are punishable identically. Rape or coercive sexual actions without any aggravating circumstances are punishable with 3 to 6 years of imprisonment. If the crime:
then it is punishable with 4 to 10 years of imprisonment with possible subsequent restraint of liberty for up to 2 years (i.e. the criminal may not change or leave residence without permission and must register himself at local penal inspectorate 1 to 4 times a month; court may also impose additional restrictions such as the criminal may not leave home in certain hours, visit certain locations, change work without permission).
If the crime
then it is punishable with 8 to 15 years of imprisonment with subsequent mandatory restraint of liberty for up to 2 years and possible ban on certain occupations or employment positions for up to 20 years.
If the crime
then it is punishable with 12 to 20 years of imprisonment with subsequent mandatory restraint of liberty for up to 2 years and possible ban on certain occupations or employment positions for up to 20 years.
, rape is defined by the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007
(Act No. 32 of 2007). This act has repealed the common law
offence of rape and replaced it with a new expanded statutory offence of rape, applicable to all forms of sexual penetration without consent, irrespective of gender.
Rape is defined as follows:
and "sexual penetration" is defined as:
.
Definition of rape
Rape is defined as follows:
The common law
offence of rape was abolished by article 5(6) of that Order.
Definition of rape:
Rape is defined as follows:
Interpretation:
Any reference to rape in a statutory provision must be construed in accordance with article 5(1) of the said Order.
Rape of a child under 13:
This is a statutory offence created by article 12 of the said Order.
Civil liability:
Loss of service:
No person is liable in tort
under the law of Northern Ireland
on the ground only of having deprived another of the services of his female servant by raping her.
.
Definition of rape:
Rape is defined as follows:
Rape of a young child:
This offence is created by section 18 of the Sexual Offences (Scotland) Act 2009
.
History:
Prior to Sexual Offences (Scotland) Act 2009
, rape in Scots Law
differed from the definition of rape in other legal systems. In Scotland
, rape was defined as "a crime at common law
which consisted of the carnal knowledge
of a female by a male person without her consent
". Under Scots law, rape could only be carried out by a male who penetrated a female's vagina. If a man's anus was penetrated by another man's penis, this was called sodomy
and was tried under indecent assault, a form of aggravated assault. Likewise, if a male penetrated a female's anus by his penis without her consent, he would also be charged with indecent assault.
In Scotland, rape can only be prosecuted in the High Court of Justiciary
and if convicted, the maximum penalty available to the court is life imprisonment. Evidence of distress can be used as corroborating evidence
. Evidence of distress would be recognised by the first person or friend that the victim sees after the event. This should not be confused with hearsay
evidence, which is not normally allowed to be led.
One of the key elements to prosecute a male for rape is to prove that the male had sexual intercourse without the female's consent. For sexual intercourse not to be rape, the active consent of the female is needed. This means it is not enough for a woman to be 'passive', she must actively consent, and was established by Lord Advocate
's Reference (No. 1 of 2001). Therefore a male could still be convicted of rape, even though the female did not say anything or show any resistance. This is a change in the law, as previously men who had sexual intercourse with sleeping women (as in the case of Charles Sweenie) or women who were unconscious due to voluntarily taking drugs or alcohol (see HMA v Logan) were charged with the lesser crime of indecent assault, rather than rape, as they had not used force to achieve penetration. Lord Advocate's Reference (No 1 of 2001), by requiring "active consent", had opened up the law to decide whether a voluntarily drunk or intoxicated woman can consent to sexual intercourse. This was clarified under the new laws of 2009 which state that sexual intercourse is non-consensual, and therefore considered rape, if it occurs :(...) where the conduct occurs at a time when B is incapable because of the effect of alcohol or any other substance of consenting to it.
Penetration is sufficient for a sexual intercourse to be deemed rape: there needs not to be any excretion of semen and the female's hymen
does not have to be ruptured.
In Scotland
, rape continued to be a gender-specific crime until the Sexual Offences (Scotland) Act 2009
. This Act came into force on 1 December 2010. The Act expanded the definition of rape to include male rape. As of April 2011, section 52 of the 2009 Act, which would abolish the common law offence of rape, has not been brought into force, so the statutory offence and common law offence coexist.
, due to the United States v. Morrison
ruling that parts of the Violence Against Women Act of 1994 were unconstitutional. Each state has its own laws concerning sexual aggression. Nor is there any national standard in the US for defining and reporting male-male or female-perpetrated rapes. In most states, the definition of rape is broad, with respect to genders and the nature of the acts involved.
Info on the 4 largest states (containing 1/3 of US pop): (In case this reference is questioned/challenged as inaccurate.) None are gender-specific, all include
CA: "A Penal Code 261 pc "rape" occurs...under California rape law...when an individual engages in sexual intercourse with another person when the sexual act is accomplished (1) against that person's will, or (2) without that person’s consent.."
TX: See Sexual assault#Texas
NY: § 130.00 Sex offenses; definitions of terms.
The following definitions are applicable to this article: 1. "Sexual intercourse" has its ordinary meaning and occurs upon any penetration, however slight.
§ 130.25 Rape in the third degree. A person is guilty of rape in the third degree when: 1. He or she engages in sexual intercourse... (defined above) a class E felony
§ 130.40 Criminal sexual act in the third degree. A person is guilty of criminal sexual act in the third degree when: 1. He or she engages in oral...or anal sexual conduct... a class E felony
http://public.leginfo.state.ny.us/LAWSSEAF.cgi?QUERYDATA=@PLPEN0P3THA130
FL:See Sexual battery
). However, by using a random national telephone survey of households, the National Crime Victimization Survey could pick up rapes unreported to the police. In addition, since both official reports collect rape data from states with widely divergent standards and definitions on what constitutes rape, uniform reporting is impossible.
A recent attempt to improve the tracking of rape, the National Violence Against Women survey was first published in 1998 by the National Institute of Justice and the federal Centers for Disease Control and Prevention. Its authors have acknowledged that they used different methodologies with "relatively high" margins of error. The 2000 report notes that "because annual rape victimization estimates (nationwide) are based on responses from only 24 women and 8 men (emphasis added) who reported being raped, they should be viewed with caution." The report goes on to note that it fails to report rapes perpetrated against children and adolescents, was well as those who were homeless, or living in institutions, group facilities, or in households without telephones.
The 2006 report of the National Violence Against Women survey was based on the much larger sample size of 8,000 men and 8,000 women. It estimated that "17.7 million women and 2.8 million men in the United States were forcibly raped at some time in their lives, with 302,091 women and 92,748 men forcibly raped in the year preceding the survey." The report defines "rape" to include completed and attempted rapes. However, the vast majority of rapes were completed: "Among all respondents, 14.8 percent of the women and 2.1 percent of the men said they were victims of a completed rape at some time in their life, whereas 2.8 percent of the women and 0.9 percent of the men said they were victims of an attempted rape only." U.S. Department of Justice, Office of Justice Programs, National Institute of Justice, “Extent, Nature, and Consequences of Rape Victimization: Findings From the National Violence Against Women Survey,” January 2006
In addition, many states define sexual crimes other than male-on-female penetration as sexual assault rather than rape. There are no national standards for defining and reporting male-on-male, female-on-female or female-on-male offenses, so such crimes are generally not included in rape statistics unless these statistics are compiled using information from states which count them as rape.
(which uses the other resources as its source).
Sexual assault
Sexual assault is an assault of a sexual nature on another person, or any sexual act committed without consent. Although sexual assaults most frequently are by a man on a woman, it may involve any combination of two or more men, women and children....
initiated by one or more persons against another person without that person's consent
Consent
Consent refers to the provision of approval or agreement, particularly and especially after thoughtful consideration.- Types of consent :*Implied consent is a controversial form of consent which is not expressly granted by a person, but rather inferred from a person's actions and the facts and...
. The act may be carried out by force, under threat, or with a person who is incapable of valid consent. It is the name of a statutory crime
Crime
Crime is the breach of rules or laws for which some governing authority can ultimately prescribe a conviction...
in jurisdictions such as England and Wales
England and Wales
England and Wales is a jurisdiction within the United Kingdom. It consists of England and Wales, two of the four countries of the United Kingdom...
, Northern Ireland
Northern Ireland
Northern Ireland is one of the four countries of the United Kingdom. Situated in the north-east of the island of Ireland, it shares a border with the Republic of Ireland to the south and west...
, Scotland
Scotland
Scotland is a country that is part of the United Kingdom. Occupying the northern third of the island of Great Britain, it shares a border with England to the south and is bounded by the North Sea to the east, the Atlantic Ocean to the north and west, and the North Channel and Irish Sea to the...
, California
California
California is a state located on the West Coast of the United States. It is by far the most populous U.S. state, and the third-largest by land area...
, and New York State, and is a legal term of art used in the definition of the offence of sexual violation in New Zealand
New Zealand
New Zealand is an island country in the south-western Pacific Ocean comprising two main landmasses and numerous smaller islands. The country is situated some east of Australia across the Tasman Sea, and roughly south of the Pacific island nations of New Caledonia, Fiji, and Tonga...
. Some countries have changed the crimes covered by rape to the term sexual assault, including Canada
Canada
Canada is a North American country consisting of ten provinces and three territories. Located in the northern part of the continent, it extends from the Atlantic Ocean in the east to the Pacific Ocean in the west, and northward into the Arctic Ocean...
.
Definitions of "rape" vary, and though rape is usually dependent upon on whether or not consent was present during the act, the term "consent" varies as well. Minors
Minor (law)
In law, a minor is a person under a certain age — the age of majority — which legally demarcates childhood from adulthood; the age depends upon jurisdiction and application, but is typically 18...
, for example, are often considered too young to consent to sexual relations with older persons (see statutory rape
Statutory rape
The phrase statutory rape is a term used in some legal jurisdictions to describe sexual activities where one participant is below the age required to legally consent to the behavior...
and age of consent
Age of consent
While the phrase age of consent typically does not appear in legal statutes, when used in relation to sexual activity, the age of consent is the minimum age at which a person is considered to be legally competent to consent to sexual acts. The European Union calls it the legal age for sexual...
). Consent is also considered invalid if obtained under duress
Duress
In jurisprudence, duress or coercion refers to a situation whereby a person performs an act as a result of violence, threat or other pressure against the person. Black's Law Dictionary defines duress as "any unlawful threat or coercion used... to induce another to act [or not act] in a manner...
, or from a person who does not have the ability to understand the nature of the act, due to factors such as young age, mental disability, or substance intoxication.
Classification
Depending on the jurisdiction, rape may be characterized as a sexual offenceFor example, by the Sexual Offences Act 1956Sexual Offences Act 1956
The Sexual Offences Act 1956 is an Act of the Parliament of the United Kingdom that consolidated the English criminal law relating to sexual offences between 1957 and 2004. It was mostly repealed by the Sexual Offences Act 2003 which replaced it, but sections 33 to 37 still survive. The 2003 Act...
and the Sexual Offences Act 2003
Sexual Offences Act 2003
The Sexual Offences Act 2003 is an Act of the Parliament of the United Kingdom of Great Britain and Northern Ireland that was passed in 2003 and became law on 1 May 2004.It replaced older sexual offences laws with more specific and explicit wording...
or an offence against the person
Offence against the person
In criminal law, an offence against the person usually refers to a crime which is committed by direct physical harm or force being applied to another person.They are usually analysed by division into the following categories:*Fatal offences*Sexual offences...
.For example, by the Offences against the Person Act 1828
Offences Against the Person Act 1828
The Offences against the Person Act 1828 was an Act of the Parliament of the United Kingdom of Great Britain and Ireland. It consolidated provisions related to offences against the person from a number of earlier statutes into a single Act...
, the Offences against the Person Act 1861
Offences Against The Person Act 1861
The Offences against the Person Act 1861 is an Act of the Parliament of the United Kingdom of Great Britain and Ireland. It consolidated provisions related to offences against the person from a number of earlier statutes into a single Act...
and the Visiting Forces Act 1952
Visiting Forces Act 1952
The Visiting Forces Act 1952 is an Act of the Parliament of the United Kingdom. provides immunity against prosecution for certain offences in the courts of United Kingdom by members of visiting forces and, by virtue of the 1964 Act, international headquarters...
Rape may also be characterized as a form of aggravated assault or battery
Battery (crime)
Battery is a criminal offense involving unlawful physical contact, distinct from assault which is the fear of such contact.In the United States, criminal battery, or simply battery, is the use of force against another, resulting in harmful or offensive contact...
, or both, indecent assault
Indecent assault
Indecent assault is an offence of aggravated assault in many jurisdictions. It is characterised as a sex crime.Indecent assault was an offence in England and Wales under sections 14 and 15 the Sexual Offences Act 1956...
For example, in England and Wales
England and Wales
England and Wales is a jurisdiction within the United Kingdom. It consists of England and Wales, two of the four countries of the United Kingdom...
before the enactment of the Sexual Offences Act 2003: R v Hodgson [1973] QB 565 (indecent assault on a woman held to be an alternative verdict to rape in a case where the accused was acquitted of rape on grounds of the consent of the victim, who was aged under 16, which was not, by virtue of section 14(2) of the Sexual Offences Act 1956, a defence to indecent assault) or sexual assault
Sexual assault
Sexual assault is an assault of a sexual nature on another person, or any sexual act committed without consent. Although sexual assaults most frequently are by a man on a woman, it may involve any combination of two or more men, women and children....
For example, in England and Wales
England and Wales
England and Wales is a jurisdiction within the United Kingdom. It consists of England and Wales, two of the four countries of the United Kingdom...
after the enactment of the Sexual Offences Act 2003
Sexual Offences Act 2003
The Sexual Offences Act 2003 is an Act of the Parliament of the United Kingdom of Great Britain and Northern Ireland that was passed in 2003 and became law on 1 May 2004.It replaced older sexual offences laws with more specific and explicit wording...
or battery, or both.
Actus reus
To sustain a conviction, rape might require proof that the defendant had sexual penetrationSexual penetration
Sexual penetration is a sexual activity that involves the entry into a bodily orifice, such as the vagina, anus or mouth, with a body part or an object....
with another person. Depending on the jurisdiction, the actus reus
Actus reus
Actus reus, sometimes called the external element or the objective element of a crime, is the Latin term for the "guilty act" which, when proved beyond a reasonable doubt in combination with the mens rea, "guilty mind", produces criminal liability in the common law-based criminal law jurisdictions...
of rape may consist of "having carnal knowledge
Carnal knowledge
Carnal knowledge is an archaic or legal euphemism for sexual intercourse. The term derives from the Biblical usage of the verb know/knew, as in the King James and other versions, a euphemism for sexual conduct...
of" a woman,For example, under the common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
of England
England
England is a country that is part of the United Kingdom. It shares land borders with Scotland to the north and Wales to the west; the Irish Sea is to the north west, the Celtic Sea to the south west, with the North Sea to the east and the English Channel to the south separating it from continental...
, and at common law in Scotland
Scotland
Scotland is a country that is part of the United Kingdom. Occupying the northern third of the island of Great Britain, it shares a border with England to the south and is bounded by the North Sea to the east, the Atlantic Ocean to the north and west, and the North Channel and Irish Sea to the...
or "having sexual intercourse with" a woman (including a girl) specifically,For example, under the Sexual Offences (Amendment) Act 1976
Sexual Offences (Amendment) Act 1976
The Sexual Offences Act 1976 is an Act of the Parliament of the United Kingdom. It made provision in relation to rape and related offences. Except for subsections and and and of section 7, the whole Act is repealed. Section 7 now provides the definition of the expression "a rape offence" in...
as read with section 46 of the Sexual Offences Act 1956
Sexual Offences Act 1956
The Sexual Offences Act 1956 is an Act of the Parliament of the United Kingdom that consolidated the English criminal law relating to sexual offences between 1957 and 2004. It was mostly repealed by the Sexual Offences Act 2003 which replaced it, but sections 33 to 37 still survive. The 2003 Act...
or either a woman or a man (including a girl or a boy) generally,For example, under section 1 of the Sexual Offences Act 1956
Sexual Offences Act 1956
The Sexual Offences Act 1956 is an Act of the Parliament of the United Kingdom that consolidated the English criminal law relating to sexual offences between 1957 and 2004. It was mostly repealed by the Sexual Offences Act 2003 which replaced it, but sections 33 to 37 still survive. The 2003 Act...
, as substituted by section 142 of the Criminal Justice and Public Order Act 1994
Criminal Justice and Public Order Act 1994
The Criminal Justice and Public Order Act 1994 is an Act of the Parliament of the United Kingdom. It introduced a number of changes to the existing law, most notably in the restriction and reduction of existing rights and in greater penalties for certain "anti-social" behaviours...
, and read with section 46 of the former mentioned Act or engaging in sexual intercourse with a person (which term includes a hermaphrodite
Hermaphrodite
In biology, a hermaphrodite is an organism that has reproductive organs normally associated with both male and female sexes.Many taxonomic groups of animals do not have separate sexes. In these groups, hermaphroditism is a normal condition, enabling a form of sexual reproduction in which both...
who might arguably be neither a woman nor a man)For example, under section 261 of the California Penal Code, or having "sexual connection" with a person effected by penile penetration of that person's genitalia,For example, under section 128(2) of the Crimes Act 1961
Crimes Act 1961
The Crimes Act 1961 is an Act of the Parliament of New Zealand administered by the Ministry of Justice.-Amendments:The Homosexual Law Reform Act 1986 amended the Crimes Act, allowing for consensual homosexual relationships between men....
or penile penetration of the vagina, anus or mouth (these terms construed as including surgically constructed organs) of a person.For example, under section 1 of the Sexual Offences Act 2003
Sexual Offences Act 2003
The Sexual Offences Act 2003 is an Act of the Parliament of the United Kingdom of Great Britain and Northern Ireland that was passed in 2003 and became law on 1 May 2004.It replaced older sexual offences laws with more specific and explicit wording...
Mens rea
Countries around the world differ in how they deal with the mens reaMens rea
Mens rea is Latin for "guilty mind". In criminal law, it is viewed as one of the necessary elements of a crime. The standard common law test of criminal liability is usually expressed in the Latin phrase, actus non facit reum nisi mens sit rea, which means "the act does not make a person guilty...
element in the law regarding rape
Rape
Rape is a type of sexual assault usually involving sexual intercourse, which is initiated by one or more persons against another person without that person's consent. The act may be carried out by physical force, coercion, abuse of authority or with a person who is incapable of valid consent. The...
, (i.e. the accused must be aware that the victim is not consenting or might not be consenting), and in how they place the onus of proof with regard to belief of consent.
Attendant circumstances
Rape has been defined so as to require proof that the sexual act in question was done without the victim's consent,For example, by section 1 of the Sexual Offences Act 2003Sexual Offences Act 2003
The Sexual Offences Act 2003 is an Act of the Parliament of the United Kingdom of Great Britain and Northern Ireland that was passed in 2003 and became law on 1 May 2004.It replaced older sexual offences laws with more specific and explicit wording...
or so as to require proof that it was done either without their consent or, alternatively, against their will.For example, by section 261 of the California Penal Code
There is not always a requirement that the victim did not consent. In the England and Wales, section 5 of the Sexual Offences Act 2003
Sexual Offences Act 2003
The Sexual Offences Act 2003 is an Act of the Parliament of the United Kingdom of Great Britain and Northern Ireland that was passed in 2003 and became law on 1 May 2004.It replaced older sexual offences laws with more specific and explicit wording...
creates the offence of "rape of a child under 13" and contains no reference to consent. After describing the sexual act the offence prohibits, the explanatory notes to the Act say "whether or not the child consented to this act is irrelevant".
Common law
Rape was an offence under the common lawCommon law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
of England
England
England is a country that is part of the United Kingdom. It shares land borders with Scotland to the north and Wales to the west; the Irish Sea is to the north west, the Celtic Sea to the south west, with the North Sea to the east and the English Channel to the south separating it from continental...
. That offence became an offence under the law of other countries, including Australia
Australia
Australia , officially the Commonwealth of Australia, is a country in the Southern Hemisphere comprising the mainland of the Australian continent, the island of Tasmania, and numerous smaller islands in the Indian and Pacific Oceans. It is the world's sixth-largest country by total area...
and the United States
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
, as a result of colonisation or conquest, or following cession (see British Empire
British Empire
The British Empire comprised the dominions, colonies, protectorates, mandates and other territories ruled or administered by the United Kingdom. It originated with the overseas colonies and trading posts established by England in the late 16th and early 17th centuries. At its height, it was the...
). It is discussed at Rape in English law#History.
Under this law rape traditionally describes the act of one party forcing another to have sexual intercourse
Sexual intercourse
Sexual intercourse, also known as copulation or coitus, commonly refers to the act in which a male's penis enters a female's vagina for the purposes of sexual pleasure or reproduction. The entities may be of opposite sexes, or they may be hermaphroditic, as is the case with snails...
with him or her. Common law rape required the utmost physical resistance by the victim, as well as substantial force by the defendant. The common law crime of rape was collectively adopted by the American colonies in the seventeenth and eighteenth centuries. Until the late twentieth century, spousal rape
Spousal rape
Marital rape, also known as spousal rape, is non-consensual sex in which the perpetrator is the victim's spouse. As such, it as a form of partner rape, of domestic violence, and of sexual abuse. Once widely condoned or ignored by law, spousal rape is now repudiated by international conventions and...
was not considered a true rape case because the woman was traditionally viewed as the property of her husband. Hence, both spouses were deemed to have consented to a life-long sexual relationship through the wedding vows. However, with changes to the marital rape exemption, as well as with the significant development of women's rights, the belief of a marital right to sexual intercourse has become less widely held.
Rape was also an offence at common law in Scotland
Scotland
Scotland is a country that is part of the United Kingdom. Occupying the northern third of the island of Great Britain, it shares a border with England to the south and is bounded by the North Sea to the east, the Atlantic Ocean to the north and west, and the North Channel and Irish Sea to the...
. This offence was not derived from the English offence as Scotland retained its own system of criminal law under the terms of the Acts of Union 1707
Acts of Union 1707
The Acts of Union were two Parliamentary Acts - the Union with Scotland Act passed in 1706 by the Parliament of England, and the Union with England Act passed in 1707 by the Parliament of Scotland - which put into effect the terms of the Treaty of Union that had been agreed on 22 July 1706,...
.
Statute
Today, most Western common-law countries, as well as civil-law countries, have legislatedLegislation
Legislation is law which has been promulgated by a legislature or other governing body, or the process of making it...
against spousal rape. They now include spousal rape (vagina
Vagina
The vagina is a fibromuscular tubular tract leading from the uterus to the exterior of the body in female placental mammals and marsupials, or to the cloaca in female birds, monotremes, and some reptiles. Female insects and other invertebrates also have a vagina, which is the terminal part of the...
l intercourse), and acts of sexual violence, such as forced anal intercourse which were traditionally dealt with under sodomy law
Sodomy law
A sodomy law is a law that defines certain sexual acts as crimes. The precise sexual acts meant by the term sodomy are rarely spelled out in the law, but are typically understood by courts to include any sexual act deemed unnatural. It also has a range of similar euphemisms...
s, in their definitions of "rape". In 2006, it was estimated that spousal rape could be prosecuted in at least 104 states (in 4 of these countries, marital rape could be prosecuted only when the spouses were judicially separated). http://www.cities-localgovernments.org/uclg/upload/docs/notaminutemore-endingviolenceagainstwomen.pdf In many countries it is not clear if spousal rape may or may not be prosecuted under ordinary rape laws. Several countries in Eastern Europe
Eastern Europe
Eastern Europe is the eastern part of Europe. The term has widely disparate geopolitical, geographical, cultural and socioeconomic readings, which makes it highly context-dependent and even volatile, and there are "almost as many definitions of Eastern Europe as there are scholars of the region"...
and Scandinavia
Scandinavia
Scandinavia is a cultural, historical and ethno-linguistic region in northern Europe that includes the three kingdoms of Denmark, Norway and Sweden, characterized by their common ethno-cultural heritage and language. Modern Norway and Sweden proper are situated on the Scandinavian Peninsula,...
made spousal rape illegal before 1970, but other countries from the Western World
Western world
The Western world, also known as the West and the Occident , is a term referring to the countries of Western Europe , the countries of the Americas, as well all countries of Northern and Central Europe, Australia and New Zealand...
outlawed it much later, mostly in the 1980s and 1990s. In the US spousal rape is illegal in all 50 states; the first state to outlaw it was South Dakota
South Dakota
South Dakota is a state located in the Midwestern region of the United States. It is named after the Lakota and Dakota Sioux American Indian tribes. Once a part of Dakota Territory, South Dakota became a state on November 2, 1889. The state has an area of and an estimated population of just over...
in 1975, and the last North Carolina
North Carolina
North Carolina is a state located in the southeastern United States. The state borders South Carolina and Georgia to the south, Tennessee to the west and Virginia to the north. North Carolina contains 100 counties. Its capital is Raleigh, and its largest city is Charlotte...
in 1993. Other developing countries have outlawed it in the 2000s.
Punishment of assailants
Punishment for rape in most countries today is imprisonment, but until the late twentieth century, some states of the U.S.United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
, for instance, could apply the death penalty
Capital punishment
Capital punishment, the death penalty, or execution is the sentence of death upon a person by the state as a punishment for an offence. Crimes that can result in a death penalty are known as capital crimes or capital offences. The term capital originates from the Latin capitalis, literally...
in cases of aggravated rape indicating the severity with which the crime was viewed. Castration
Castration
Castration is any action, surgical, chemical, or otherwise, by which a male loses the functions of the testicles or a female loses the functions of the ovaries.-Humans:...
is sometimes a punishment for rape and, controversially, some U.S. jurisdictions allow shorter sentences for sex criminals who agree to voluntary chemical castration
Chemical castration
Chemical castration is the administration of medication designed to reduce libido and sexual activity, usually in the hope of preventing rapists, child molesters and other sex offenders from repeating their crimes...
.
Prison sentences for rape are not uniform. A study made by the U.S. Department of Justice of prison releases in 1992, involving about 80 percent of the prison population, found that the average sentence for convicted rapists was 11.8 years, while the actual time served was 5.4 years. This follows the typical pattern for violent crimes in the US, where those convicted typically serve no more than half of their sentence.
Between 2002 and 2003, more than one in ten convicted rapists in Victoria, Australia
Australia
Australia , officially the Commonwealth of Australia, is a country in the Southern Hemisphere comprising the mainland of the Australian continent, the island of Tasmania, and numerous smaller islands in the Indian and Pacific Oceans. It is the world's sixth-largest country by total area...
, served a wholly suspended sentence
Suspended sentence
A suspended sentence is a legal term for a judge's delaying of a defendant's serving of a sentence after they have been found guilty, in order to allow the defendant to perform a period of probation...
, and the average total effective sentence for rape was seven years.
Punishment of victims
- See also: Honor killingHonor killingAn honor killing or honour killing is the homicide of a member of a family or social group by other members, due to the belief of the perpetrators that the victim has brought dishonor upon the family or community...
While the practice is condemned as barbaric by many present-day societies, some societies punish the victims of rape as well as the perpetrators. According to such cultures, being raped dishonors the victim and, in many cases, the victim's family. In some cultures rape victims are sometimes killed to restore honor to the family's name.
In the Shakespeare
William Shakespeare
William Shakespeare was an English poet and playwright, widely regarded as the greatest writer in the English language and the world's pre-eminent dramatist. He is often called England's national poet and the "Bard of Avon"...
drama
Drama
Drama is the specific mode of fiction represented in performance. The term comes from a Greek word meaning "action" , which is derived from "to do","to act" . The enactment of drama in theatre, performed by actors on a stage before an audience, presupposes collaborative modes of production and a...
Titus Andronicus
Titus Andronicus
Titus Andronicus is a tragedy by William Shakespeare, and possibly George Peele, believed to have been written between 1588 and 1593. It is thought to be Shakespeare's first tragedy, and is often seen as his attempt to emulate the violent and bloody revenge plays of his contemporaries, which were...
, Titus Andronicus kills his raped, maimed daughter in what he believes to be a mercy killing.
Rape and cultural views:
Certain cultures have historically promoted a system of honor, dishonor and shame, which was applied with particular strictness to females. A victim of rape would be considered to have lost her honorable reputation and place in society, a loss of honor which entailed shame
Shame
Shame is, variously, an affect, emotion, cognition, state, or condition. The roots of the word shame are thought to derive from an older word meaning to cover; as such, covering oneself, literally or figuratively, is a natural expression of shame....
on the woman's family
Family
In human context, a family is a group of people affiliated by consanguinity, affinity, or co-residence. In most societies it is the principal institution for the socialization of children...
group as well. In early ancient Rome
Ancient Rome
Ancient Rome was a thriving civilization that grew on the Italian Peninsula as early as the 8th century BC. Located along the Mediterranean Sea and centered on the city of Rome, it expanded to one of the largest empires in the ancient world....
, ancient China, and other cultures, a pressure has existed which has led women to commit suicide after becoming victims of rape. The iconic Roman instance is that of Lucretia
Lucretia
Lucretia is a legendary figure in the history of the Roman Republic. According to the story, told mainly by the Roman historian Livy and the Greek historian Dionysius of Halicarnassus , her rape by the king's son and consequent suicide were the immediate cause of the revolution that overthrew the...
. Likewise, suicide of female rape victims for reasons of shame is also historically documented in Chinese and Japanese culture http://www.theophoretos.hostmatrix.org/chinesepatriarchy.htm. The "logic" of the loss of honor was largely an extension of the ingrained view of women as commodities for men to consume. Other views would indicate that issues pertaining to paternity may have been more of an issue than damaged goods. The implication belying the practice is also that women did not biologically lust and thus would not/could not choose to have a sexual experience of her own accord, thus providing a justification for women as bartered products.
Canada
The word "rape" is not used in the Canadian Criminal Code. Instead the law criminalizes "sexual assault".Sexual assault is defined as sexual contact with another person without that other person's consent. Consent is defined in section 273.1(1) as "the voluntary agreement of the complainant to engage in the sexual activity in question". For more details, see Sexual assault#Canada.
France
French penal codeAny act of sexual penetration, whatever its nature, committed against another person by violence, constraint, threat or surprise, is rape. Rape is punished by a maximum of fifteen years' criminal imprisonment.
Rape is punished by a maximum of twenty years' criminal imprisonment in certain aggravating factors (including victim under age of 15).
Rape is punished by a maximum of thirty years' criminal imprisonment where it caused the death of the victim.
Rape is punished by a maximum of imprisonment for life when it is preceded, accompanied or followed by torture or acts of barbarity.
New Zealand
Article 128 is entitled Sexual violation defined. Article 128 (1) states that Sexual violation is the act of a person who rapes another person or has unlawful sexual connection with another person. Article 128 (2) defines rape as follows:Article 128 (3) outlaws "unlawful sexual connection" (which refers to sexual acts other than those described in 128 (2) - i.e without the penetration of genitalia by the penis - committed under the same circumstances of 128 (2).
Article 128 (4) makes it clear that spousal rape is illegal: "One person may be convicted of the sexual violation of another person at a time when they were married to each other."
Consent
The mere fact that a person allows sexual connection to be performed on them, does not automatically mean that they are legally consenting. If that person allows sexual connection due to coercion (eg, under force, threats or fear of force; when he/she is asleep or very intoxicated; if he/she is affected by an intellectual, mental, or physical condition or impairment of a certain nature and degree; when he/she is mistaken about the partner's identity), then he/she is not legally consenting.128A Allowing sexual activity does not amount to consent in some circumstances
(1) A person does not consent to sexual activity just because he or she does not protest or offer physical resistance to the activity.
(2) A person does not consent to sexual activity if he or she allows the activity because of— force applied to him or her or some other person; or the threat (express or implied) of the application of force to him or her or some other person; or the fear of the application of force to him or her or some other person.
(3) A person does not consent to sexual activity if the activity occurs while he or she is asleep or unconscious.
(4) A person does not consent to sexual activity if the activity occurs while he or she is so affected by alcohol or some other drug that he or she cannot consent or refuse to consent to the activity.
(5) A person does not consent to sexual activity if the activity occurs while he or she is affected by an intellectual, mental, or physical condition or impairment of such a nature and degree that he or she cannot consent or refuse to consent to the activity.
(6) One person does not consent to sexual activity with another person if he or she allows the sexual activity because he or she is mistaken about who the other person is.
(7) A person does not consent to an act of sexual activity if he or she allows the act because he or she is mistaken about its nature and quality.
(8) This section does not limit the circumstances in which a person does not consent to sexual activity.
(9) For the purposes of this section,—
- allows includes acquiesces in, submits to, participates in, and undertakes
- sexual activity, in relation to a person, means— sexual connection with the person; or the doing on the person of an indecent act that, without the person's consent, would be an indecent assault of the person.
Attempted sexual violation and assault with intent to commit sexual violation are also punished (Article 129).
Article 129A is entitled Sexual conduct with consent induced by certain threats and makes it illegal for a person to have sexual connection with another person or to do an indecent act on another person when the accused knows that the other person has been induced to consent to the connection/act by threat. However a person is guilty of this crime "if (and only if) he or she knows that the other person has been induced to consent" to the sexual connection/indecent act "by an express or implied threat". Subsection (5), (a), (b), (c) of this article defines "threat" for the purpose of this article.
Article 135 outlaws Indecent assault. Article 138 outlaws Sexual exploitation of person with significant impairment.
Norway
In Norway, rape is defined as either:- 1. obtaining sexual intercourse by means of violence or threatening behaviour,
- 2. having sexual intercourse with somebody who is unconscious or unable to resist such action, or
- 3. by means of violence or threatening behaviour causes a person to have sexual intercourse with another, or to conduct similar actions with himself.
When any of these circumstances occur, a person guilty of rape is punishable with up to 10 years imprisonment. (Penal Code § 192)
However, if the sexual intercourse was penetration or the person charged himself induced unconsciousness or inability to resist action to receive sexual intercourse, the prison sentence is instead increased to at least 2 years, with the statutory maximum punishment of 15 years.
As well, the same section defines aggravated rape as a rape committed
- a. by multiple persons in cooperation (gang rape)
- b. on a particularly painful or offensive way
- c. by a person previously convicted of rape or sexual intercourse with children (§ 195)
- d. in such a way that the victim either dies or receives grievous bodily harm.
The section recognizes sexually transmitted disease
Sexually transmitted disease
Sexually transmitted disease , also known as a sexually transmitted infection or venereal disease , is an illness that has a significant probability of transmission between humans by means of human sexual behavior, including vaginal intercourse, oral sex, and anal sex...
s (defined in the Infection Protection Act) as grievous bodily harm.
In November 2008, Agder Court of Appeal
Agder Court of Appeal
Agder Court of Appeal is the court of appeal located in Skien, Norway. It serves the counties of Aust-Agder, Telemark, Vest-Agder and Vestfold. The court has 21 judges and 13 administrative staff, including a director...
stated that rape under point 2 often lead to a lower punishment (the court itself gave a 27-year old man 2 years imprisonment for such a crime). As well, the general trend in sentences is on average 3 years imprisonment for rape. Minister for Justice Knut Storberget
Knut Storberget
Knut Storberget is a Norwegian barrister and politician for the Norwegian Labour Party. He became the Minister of Justice and the Police serving in the second cabinet Stoltenberg from 2005. Storberget stepped down on November 11, 2011.He was elected to the Norwegian Parliament from Hedmark in...
have stated that he himself is positive to increasing sentences for rape to minimum 3 years imprisonment, as there currently are works on establishing a new Penal Code.
Philippines
Article 266-A of the Revised Penal Code (Title Eight of Act No. 3815) provides that:Rape: When And How Committed. - Rape is committed:
- 1) By a man who shall have carnal knowledge of a woman under any of the following circumstances:
- a) Through force, threat, or intimidation;
- b) When the offended party is deprived of reason or otherwise unconscious;
- c) By means of fraudulent machination or grave abuse of authority; and
- d) When the offended party is under twelve (12) years of age or is demented, even though none of the circumstances mentioned above be present.
Chapter 3 of this Code, which relates to rape, was inserted by the Anti-Rape Law of 1997. By section 2 of that Act, the crime of rape is classified as a crime against persons under that Code.
Russia
According to the Article 131 of the Criminal Code of Russia, rape is defined as heterosexual vaginaVagina
The vagina is a fibromuscular tubular tract leading from the uterus to the exterior of the body in female placental mammals and marsupials, or to the cloaca in female birds, monotremes, and some reptiles. Female insects and other invertebrates also have a vagina, which is the terminal part of the...
l intercourse using violence or threat of violence or if the victim is in a helpless state. The other forms of a violent sexual intercourse (male-male, female-male, female-female and non-vaginal male-female) are called "coercive sexual actions" and are punishable by the Article 132. These two crimes, however, are punishable identically. Rape or coercive sexual actions without any aggravating circumstances are punishable with 3 to 6 years of imprisonment. If the crime:
- was committed repeatedly (against 1 or more than 1 victim)
- was committed by a group of criminals
- was committed with a threat of murder or grievous harm to the health
- was committed with particular cruelty
- caused an STDSexually transmitted diseaseSexually transmitted disease , also known as a sexually transmitted infection or venereal disease , is an illness that has a significant probability of transmission between humans by means of human sexual behavior, including vaginal intercourse, oral sex, and anal sex...
infection
then it is punishable with 4 to 10 years of imprisonment with possible subsequent restraint of liberty for up to 2 years (i.e. the criminal may not change or leave residence without permission and must register himself at local penal inspectorate 1 to 4 times a month; court may also impose additional restrictions such as the criminal may not leave home in certain hours, visit certain locations, change work without permission).
If the crime
- Was committed against a person under 18 years
- Caused the grievous harm to the health, HIVHIVHuman immunodeficiency virus is a lentivirus that causes acquired immunodeficiency syndrome , a condition in humans in which progressive failure of the immune system allows life-threatening opportunistic infections and cancers to thrive...
infection or other grievous consequences
then it is punishable with 8 to 15 years of imprisonment with subsequent mandatory restraint of liberty for up to 2 years and possible ban on certain occupations or employment positions for up to 20 years.
If the crime
- Caused the death of the victim by inadvertency
- Was committed against a person under 14 years
then it is punishable with 12 to 20 years of imprisonment with subsequent mandatory restraint of liberty for up to 2 years and possible ban on certain occupations or employment positions for up to 20 years.
South Africa
In South AfricaSouth Africa
The Republic of South Africa is a country in southern Africa. Located at the southern tip of Africa, it is divided into nine provinces, with of coastline on the Atlantic and Indian oceans...
, rape is defined by the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007
Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007
The Criminal Law Amendment Act, 2007 is a South African Act of Parliament which comprehensively revised and codified the law relating to sex offences...
(Act No. 32 of 2007). This act has repealed the common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
offence of rape and replaced it with a new expanded statutory offence of rape, applicable to all forms of sexual penetration without consent, irrespective of gender.
Rape is defined as follows:
and "sexual penetration" is defined as:
England and Wales
Rape is a statutory offence. It is created by section 1 of the Sexual Offences Act 2003Sexual Offences Act 2003
The Sexual Offences Act 2003 is an Act of the Parliament of the United Kingdom of Great Britain and Northern Ireland that was passed in 2003 and became law on 1 May 2004.It replaced older sexual offences laws with more specific and explicit wording...
.
Definition of rape
Rape is defined as follows:
Northern Ireland
Rape is a statutory offence. It is created by article 5 of the Sexual Offences (Northern Ireland) Order 2008 (S.I. 1769/2008 (N.I. 2)).The common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
offence of rape was abolished by article 5(6) of that Order.
Definition of rape:
Rape is defined as follows:
Interpretation:
Any reference to rape in a statutory provision must be construed in accordance with article 5(1) of the said Order.
Rape of a child under 13:
This is a statutory offence created by article 12 of the said Order.
Civil liability:
Loss of service:
No person is liable in tort
Tort
A tort, in common law jurisdictions, is a wrong that involves a breach of a civil duty owed to someone else. It is differentiated from a crime, which involves a breach of a duty owed to society in general...
under the law of Northern Ireland
Northern Ireland
Northern Ireland is one of the four countries of the United Kingdom. Situated in the north-east of the island of Ireland, it shares a border with the Republic of Ireland to the south and west...
on the ground only of having deprived another of the services of his female servant by raping her.
Scotland
Rape is a statutory offence. It is created by section 1 of the Sexual Offences (Scotland) Act 2009Sexual Offences (Scotland) Act 2009
The Sexual Offences Act 2009 is an Act of the Scottish Parliament. It creates a code of sexual offences that is said to be intended to reform that area of the law....
.
Definition of rape:
Rape is defined as follows:
Rape of a young child:
This offence is created by section 18 of the Sexual Offences (Scotland) Act 2009
Sexual Offences (Scotland) Act 2009
The Sexual Offences Act 2009 is an Act of the Scottish Parliament. It creates a code of sexual offences that is said to be intended to reform that area of the law....
.
History:
Prior to Sexual Offences (Scotland) Act 2009
Sexual Offences (Scotland) Act 2009
The Sexual Offences Act 2009 is an Act of the Scottish Parliament. It creates a code of sexual offences that is said to be intended to reform that area of the law....
, rape in Scots Law
Scots law
Scots law is the legal system of Scotland. It is considered a hybrid or mixed legal system as it traces its roots to a number of different historical sources. With English law and Northern Irish law it forms the legal system of the United Kingdom; it shares with the two other systems some...
differed from the definition of rape in other legal systems. In Scotland
Scotland
Scotland is a country that is part of the United Kingdom. Occupying the northern third of the island of Great Britain, it shares a border with England to the south and is bounded by the North Sea to the east, the Atlantic Ocean to the north and west, and the North Channel and Irish Sea to the...
, rape was defined as "a crime at common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
which consisted of the carnal knowledge
Carnal knowledge
Carnal knowledge is an archaic or legal euphemism for sexual intercourse. The term derives from the Biblical usage of the verb know/knew, as in the King James and other versions, a euphemism for sexual conduct...
of a female by a male person without her consent
Consent
Consent refers to the provision of approval or agreement, particularly and especially after thoughtful consideration.- Types of consent :*Implied consent is a controversial form of consent which is not expressly granted by a person, but rather inferred from a person's actions and the facts and...
". Under Scots law, rape could only be carried out by a male who penetrated a female's vagina. If a man's anus was penetrated by another man's penis, this was called sodomy
Sodomy
Sodomy is an anal or other copulation-like act, especially between male persons or between a man and animal, and one who practices sodomy is a "sodomite"...
and was tried under indecent assault, a form of aggravated assault. Likewise, if a male penetrated a female's anus by his penis without her consent, he would also be charged with indecent assault.
In Scotland, rape can only be prosecuted in the High Court of Justiciary
High Court of Justiciary
The High Court of Justiciary is the supreme criminal court of Scotland.The High Court is both a court of first instance and a court of appeal. As a court of first instance, the High Court sits mainly in Parliament House, or in the former Sheriff Court building, in Edinburgh, but also sits from time...
and if convicted, the maximum penalty available to the court is life imprisonment. Evidence of distress can be used as corroborating evidence
Corroborating evidence
Corroborating evidence is evidence that tends to support a proposition that is already supported by some evidence, therefore confirming the proposition. For example, W, a witness, testifies that she saw X drive his automobile into a green car...
. Evidence of distress would be recognised by the first person or friend that the victim sees after the event. This should not be confused with hearsay
Hearsay
Hearsay is information gathered by one person from another person concerning some event, condition, or thing of which the first person had no direct experience. When submitted as evidence, such statements are called hearsay evidence. As a legal term, "hearsay" can also have the narrower meaning of...
evidence, which is not normally allowed to be led.
One of the key elements to prosecute a male for rape is to prove that the male had sexual intercourse without the female's consent. For sexual intercourse not to be rape, the active consent of the female is needed. This means it is not enough for a woman to be 'passive', she must actively consent, and was established by Lord Advocate
Lord Advocate
Her Majesty's Advocate , known as the Lord Advocate , is the chief legal officer of the Scottish Government and the Crown in Scotland for both civil and criminal matters that fall within the devolved powers of the Scottish Parliament...
's Reference (No. 1 of 2001). Therefore a male could still be convicted of rape, even though the female did not say anything or show any resistance. This is a change in the law, as previously men who had sexual intercourse with sleeping women (as in the case of Charles Sweenie) or women who were unconscious due to voluntarily taking drugs or alcohol (see HMA v Logan) were charged with the lesser crime of indecent assault, rather than rape, as they had not used force to achieve penetration. Lord Advocate's Reference (No 1 of 2001), by requiring "active consent", had opened up the law to decide whether a voluntarily drunk or intoxicated woman can consent to sexual intercourse. This was clarified under the new laws of 2009 which state that sexual intercourse is non-consensual, and therefore considered rape, if it occurs :(...) where the conduct occurs at a time when B is incapable because of the effect of alcohol or any other substance of consenting to it.
Penetration is sufficient for a sexual intercourse to be deemed rape: there needs not to be any excretion of semen and the female's hymen
Hymen
The hymen is a membrane that surrounds or partially covers the external vaginal opening. It forms part of the vulva, or external genitalia. The size of the hymenal opening increases with age. Although an often practiced method, it is not possible to confirm with certainty that a girl or woman is a...
does not have to be ruptured.
In Scotland
Scotland
Scotland is a country that is part of the United Kingdom. Occupying the northern third of the island of Great Britain, it shares a border with England to the south and is bounded by the North Sea to the east, the Atlantic Ocean to the north and west, and the North Channel and Irish Sea to the...
, rape continued to be a gender-specific crime until the Sexual Offences (Scotland) Act 2009
Sexual Offences (Scotland) Act 2009
The Sexual Offences Act 2009 is an Act of the Scottish Parliament. It creates a code of sexual offences that is said to be intended to reform that area of the law....
. This Act came into force on 1 December 2010. The Act expanded the definition of rape to include male rape. As of April 2011, section 52 of the 2009 Act, which would abolish the common law offence of rape, has not been brought into force, so the statutory offence and common law offence coexist.
United States
There is no national rape law in the United StatesUnited States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
, due to the United States v. Morrison
United States v. Morrison
United States v. Morrison, is a United States Supreme Court decision which held that parts of the Violence Against Women Act of 1994 were unconstitutional because they exceeded congressional power under the Commerce Clause and under section 5 of the Fourteenth Amendment to the Constitution.-...
ruling that parts of the Violence Against Women Act of 1994 were unconstitutional. Each state has its own laws concerning sexual aggression. Nor is there any national standard in the US for defining and reporting male-male or female-perpetrated rapes. In most states, the definition of rape is broad, with respect to genders and the nature of the acts involved.
Info on the 4 largest states (containing 1/3 of US pop): (In case this reference is questioned/challenged as inaccurate.) None are gender-specific, all include
CA: "A Penal Code 261 pc "rape" occurs...under California rape law...when an individual engages in sexual intercourse with another person when the sexual act is accomplished (1) against that person's will, or (2) without that person’s consent.."
TX: See Sexual assault#Texas
NY: § 130.00 Sex offenses; definitions of terms.
The following definitions are applicable to this article: 1. "Sexual intercourse" has its ordinary meaning and occurs upon any penetration, however slight.
§ 130.25 Rape in the third degree. A person is guilty of rape in the third degree when: 1. He or she engages in sexual intercourse... (defined above) a class E felony
§ 130.40 Criminal sexual act in the third degree. A person is guilty of criminal sexual act in the third degree when: 1. He or she engages in oral...or anal sexual conduct... a class E felony
http://public.leginfo.state.ny.us/LAWSSEAF.cgi?QUERYDATA=@PLPEN0P3THA130
FL:See Sexual battery
United States: rape reporting
According to USA Today reporter Kevin Johnson, "no other major category of crime - not murder, assault or robbery - has generated a more serious challenge of the credibility of national crime statistics" as has the crime of rape. He says:"There are good reasons to be cautious in drawing conclusions from reports on rape. The two most accepted studies available - the FBI's annual Uniform Crime Report and the Justice Department's annual National Crime Victimization Survey - each have widely acknowledged weaknesses."The FBI's report fails to report rapes with male victims, both of adults and children, fails to report non-forcible rapes of either gender by either gender, and reflects only the number of rapes reported to police. The Justice Department's survey solicits information from people 12 and older, excluding the youngest victims of rape (and incest
Incest
Incest is sexual intercourse between close relatives that is usually illegal in the jurisdiction where it takes place and/or is conventionally considered a taboo. The term may apply to sexual activities between: individuals of close "blood relationship"; members of the same household; step...
). However, by using a random national telephone survey of households, the National Crime Victimization Survey could pick up rapes unreported to the police. In addition, since both official reports collect rape data from states with widely divergent standards and definitions on what constitutes rape, uniform reporting is impossible.
A recent attempt to improve the tracking of rape, the National Violence Against Women survey was first published in 1998 by the National Institute of Justice and the federal Centers for Disease Control and Prevention. Its authors have acknowledged that they used different methodologies with "relatively high" margins of error. The 2000 report notes that "because annual rape victimization estimates (nationwide) are based on responses from only 24 women and 8 men (emphasis added) who reported being raped, they should be viewed with caution." The report goes on to note that it fails to report rapes perpetrated against children and adolescents, was well as those who were homeless, or living in institutions, group facilities, or in households without telephones.
The 2006 report of the National Violence Against Women survey was based on the much larger sample size of 8,000 men and 8,000 women. It estimated that "17.7 million women and 2.8 million men in the United States were forcibly raped at some time in their lives, with 302,091 women and 92,748 men forcibly raped in the year preceding the survey." The report defines "rape" to include completed and attempted rapes. However, the vast majority of rapes were completed: "Among all respondents, 14.8 percent of the women and 2.1 percent of the men said they were victims of a completed rape at some time in their life, whereas 2.8 percent of the women and 0.9 percent of the men said they were victims of an attempted rape only." U.S. Department of Justice, Office of Justice Programs, National Institute of Justice, “Extent, Nature, and Consequences of Rape Victimization: Findings From the National Violence Against Women Survey,” January 2006
In addition, many states define sexual crimes other than male-on-female penetration as sexual assault rather than rape. There are no national standards for defining and reporting male-on-male, female-on-female or female-on-male offenses, so such crimes are generally not included in rape statistics unless these statistics are compiled using information from states which count them as rape.
United States: rape statistics
Rape crisis statistics can be found from the FBI and the Bureau of Justice as well as the CDC and RAINNRAINN
The Rape, Abuse & Incest National Network is an American anti-sexual assault organization, the largest in the United States. RAINN operates the National Sexual Assault Hotline and carries out programs to prevent sexual assault, help victims, and to ensure that rapists are brought to justice.RAINN...
(which uses the other resources as its source).