Laws regarding rape

Laws relating to the crime of rape

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 physical force, under threat or manipulation, by impersonation, or with a person who is incapable of giving valid consent. Definitions of rape vary, but they generally require some degree of sexual penetration without consent.

Depending on the jurisdiction, rape may be characterized as a sexual offence or an offence against the person. Rape may also be characterized as a form of aggravated assault or battery, or both, indecent assault or sexual assault or battery, or both.

To sustain a conviction, rape might require proof that the defendant had sexual penetration with another person. Depending on the jurisdiction, the actus reus of rape may consist of "having carnal knowledge of" a woman, or "having sexual intercourse with" a woman (including a girl) specifically, or either a woman or a man (including a girl or a boy) generally, or engaging in sexual intercourse with a person (which term includes an intersex person who might arguably be neither a woman nor a man) or having "sexual connection" with a person affected by penile penetration of that person's genitalia, or penile penetration of the vagina, anus or mouth (these terms construed as including surgically constructed organs) of a person. In Prosecutor v. Anto Furundžija, the International Criminal Tribunal for the former Yugoslavia included fellatio in the definition of rape, because [para 183]: "The Trial Chamber holds that the forced penetration of the mouth by the male sexual organ constitutes a most humiliating and degrading attack upon human dignity. The essence of the whole corpus of international humanitarian law as well as human rights law lies in the protection of the human dignity of every person, whatever his or her gender."

Rape has been defined so as to require proof that the sexual act in question was done without the victim's consent, or so as to require proof that it was done either without their consent or, alternatively, against their will. 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." In M. C. v. Bulgaria, the European Court of Human Rights ruled that the victim does not necessarily have to resist physically for the crime of rape to be committed [para 166]:

[T]he Court is persuaded that any rigid approach to the prosecution of sexual offences, such as requiring proof of physical resistance in all circumstances, risks leaving certain types of rape unpunished and thus jeopardising the effective protection of the individual's sexual autonomy. In accordance with contemporary standards and trends in that area, the member States' positive obligations under Articles 3 and 8 of the Convention [Convention for the Protection of Human Rights and Fundamental Freedoms] must be seen as requiring the penalisation and effective prosecution of any non consensual sexual act, including in the absence of physical resistance by the victim. Some circumstances, such as where the victim is kidnapped or in detention, or under conditions of war or genocide, may be viewed as so coercive, that they presume non consent altogether; for example in ICTY, The Prosecutor v. Kunarac, Kovac and Vukovic, it was ruled, in regard to the rape during the Bosnian War, where women were kept in detention centers, under extremely harsh conditions, and were selected for sex by soldiers and policemen, that [para 132]: "Such detentions amount to circumstances that were so coercive as to negate any possibility of consent." The issue arises in law as who can legally consent, for example with regard to persons who suffer from mental or physical disability. Although laws differ by jurisdiction, emerging international standards suggest that a person's mental or physical disability, should not, in and of itself, render the sexual interaction illegal, but rather the exploitation or abuse of such disability by the perpetrator should do so: in the European Union, the Directive 2011/93/EU of the European Parliament and of the Council of 13 December 2011 reads (with regard to the determination of legal consent of a child who is above the age of consent): "(10) Disability, by itself, does not automatically constitute an impossibility to consent to sexual relations. However, the abuse of the existence of such a disability in order to engage in sexual activities with a child should be criminalised."

Punishment for rape in most countries today is imprisonment. 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. In the past, rape was often punished with death, and it is punishable by death in at least nine countries today: China, Afghanistan, United Arab Emirates, Egypt, Iran, Saudi Arabia, Pakistan, and North Korea. In some of these instances, special circumstances apply. For example, rape is only punishable by death in India if the victim dies or is put in a persistent vegetative state, and/or if the rapist is a repeat offender, and in Iran, a death sentence for rape can be substituted with compensation, with or without imprisonment and flogging, if the victim so chooses. In 1977, in Coker v. Georgia the Supreme Court of the United States held that the death penalty for the crime of rape of an adult woman was cruel and unusual punishment, and thus banned it as a violation of the Eighth Amendment to the United States Constitution. In 2008 in Kennedy v. Louisiana it ruled the same in regard to rape of a child. 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 9.8 years, while the actual time served was 5.4 years. This follows the typical pattern of 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. In the Republic of Ireland, the average sentence given for rape is 5–7 years.

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 countries (e. g. Libya, Afghanistan) rape victims are sometimes killed to restore honor to the family's name. 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. In the Shakespeare drama Titus Andronicus, the title character kills his raped, maimed daughter in what he believes to be a mercy killing. Likewise, the suicide of female rape victims for reasons of shame is also historically documented in Chinese and Japanese culture. In countries which outlaw fornication or adultery, rape victims may become subject to these laws (if they cannot prove the rape case and/or if it is revealed they were not virgins at the time of the assault – in the case of unmarried victims).

The Criminal Code does not contain an offence of "rape," which historically required proof of penile penetration for a conviction. Instead, the law criminalizes "sexual assault," which is defined as sexual contact with another person without that other person's consent. The offence of sexual assault is broader than the historical offence of rape. Proof of penetration is not required to ground the offence of sexual assault, nor is the offence gender specific. Consent is defined in section 273.1(1) of the Criminal Code as "the voluntary agreement of the complainant to engage in the sexual activity in question."

In the French penal code [fr] any act of sexual penetration, whatever its nature, committed against another person or on the perpetrator, 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.

Penal Code, Art. 336 par. 1 creates the offence of rape. It reads:

Whoever with physical violence or with threat of grave and direct danger forces another to intercourse or to tolerance or action of an indecent act, is punished with incarceration. In 2019 a new paragraph was added (Art. 336 par. 5), practically making lack of consent the sole criterion for rape. It reads:

Marital rape was made illegal in 2006.

In 2019, the Indian Supreme Court ruled that sex on a false promise of marriage constitutes rape.

In Iran, the sentence for a rape case is death by hanging in public squares or prisons.

A person allowing 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 (e. g., under force, threats or fear of force; when he/she is asleep or affected by alcohol or a drug; 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. 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 a person with a significant impairment.

Article 266 A of the Revised Penal Code (Title Eight of Act No. 3815) provides that:

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. On March 3, 2022, Republic Act (RA) No. 11648 was signed and it changed the definition of rape into "By a person who shall have carnal knowledge of another person", effectively making male rape a crime.

Rape was formerly a common law offence, with a statutory penalty first given by the Offences against the Person Act 1861, and given a statutory definition by the Sexual Offences (Amendment) Act 1976. This has itself been superseded by the Sexual Offences Act 2003. Rape is currently defined, in section 1 of that act, as follows:

It follows that it is not possible for a person who does not have a penis to commit rape. (By general rules of statutory interpretation "words importing the masculine gender include the feminine," so the use of the male pronoun does not preclude a person who is legally recognized as female being convicted of rape.) Section 2 of that act defines assault by penetration:

Both are indictable offences carrying a maximum sentence of life imprisonment. Rape by a woman (where it does not involve penetration of the victim) falls under the more general section 4, Causing a person to engage in sexual activity without consent, and/or section 3, Sexual assault (sexual touching without consent), both either way offences with a maximum sentence of 10 years' imprisonment. Other sections create parallel offences where the victim is under 16 years of age; in these cases, consent is irrelevant.

The law on sexual offences closely follows that of England. Rape is a statutory offence created by article 5 of the Sexual Offences (Northern Ireland) Order 2008 (S. I. 1769/2008 (N. I. 2)), which contains the same definition as in England. Likewise assault by penetration, sexual assault, causing a person to engage in sexual activity without consent, and child sex offences are copied from the Sexual Offences Act 2003. Pursuant to article 5(5), any reference to rape in a statutory provision must be construed in accordance with article 5(1).

Rape is a statutory offence. It is created by section 1 of the Sexual Offences (Scotland) Act 2009. It is defined as follows:

Subsection (2) defines that "penetration" involves a penis. Similarly to the English law, this act also creates various child sex offences in which consent is irrelevant if the victim is under 16. "Rape of a young child" under section 18 applies only if the child is under 13; otherwise it is "having intercourse with an older child."

Prior to the 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. This 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 need not 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. The victims' commissioner for England and Wales, Dame Vera Baird, warned in 2020 that only 14 per cent of sexual violence victims report the assault to police. And even if sexual assault and rape are reported, prosecutions and convictions remain depressingly low. In Britain, only 1.6 per cent of rapes reported to the police result in a charge – a rate so low that Baird, has said that "we are witnessing the decriminalisation of rape."

There is no federal rape law in the United States, 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, some laws from the founding of the US and during the 1950s were based in racial discrimination against black people, in labelling consensual sex between a black man and white woman rape, and the fact that rape laws at the time did not apply when the victim was a black woman. There is also no national standard in the US for defining and reporting male–male or female perpetrated rapes. State laws vary considerably, and in most states, the term "rape" is no longer used, and the offense has been replaced by crimes such as "sexual assault," "criminal sexual conduct," "sexual abuse," "sexual battery" etc. The US laws on sexual violence are complex, with states having numerous sex offenses, dealing with different situations. The laws on sex crimes have been changed and modernized significantly during the last decades and they continue to change.

According to the USA Today reporter Kevin Johnson, "no other major category of crime – not murder, assault or robbery – has generated a more serious challenge to 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.|author=Kevin Johnson|title=Rape statistics not crystal clear|source=https://archive. today/20070928002007/http://www. junkscience. com/nov98/rape2. html

The FBI's report fails to report rapes with male victims, both 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). 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. In an 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 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." It goes on to note that it fails to report rapes perpetrated against children, adolescents, the homeless, or people 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." 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.

Rape crisis statistics can be found from the FBI and the Bureau of Justice as well as the CDC and RAINN (which uses the other resources as its source).