Laws regarding 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.[1][2][3][4]
Definitions of rape vary, but they generally require some degree of sexual penetration without consent.[4][1][2] The term "consent" varies by law 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.[4]
Many jurisdictions, such as Canada and several US and Australian states, no longer have a traditional common law offence of rape, which always required that sexual penetration had occurred. Some of these jurisdictions instead have created new statutory offences, such as sexual assault or criminal sexual conduct, which criminalise sexual contact without consent, and without any requirement that sexual intercourse occurred.[5][6]
Terminology and definitions[edit]
Classification[edit]
Depending on the jurisdiction, rape may be characterized as a sexual offence[note 1] or an offence against the person.[note 2] Rape may also be characterized as a form of aggravated assault or battery, or both, indecent assault[note 3] or sexual assault[note 4] or battery, or both.
Actus reus[edit]
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,[note 5] or "having sexual intercourse with" a woman (including a girl) specifically,[note 6] or either a woman or a man (including a girl or a boy) generally,[note 7] or engaging in sexual intercourse with a person (which term includes an intersex person who might arguably be neither a woman nor a man)[note 8] or having "sexual connection" with a person affected by penile penetration of that person's genitalia,[note 9] or penile penetration of the vagina, anus or mouth (these terms construed as including surgically constructed organs) of a person.[note 10]
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."[7]
Mens rea[edit]
Countries around the world differ in how they deal with the mens rea element in the law regarding rape, (i.e. the belief of the accused 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.
For example, under the Sexual Offences Act 2003, the belief must be "reasonable" and "Whether a belief is reasonable is to be determined having regard to all the circumstances, including any steps A has taken to ascertain whether B consents."[8]
In some jurisdictions the mens rea is quite complex, such as in New South Wales, where the law reads:[9]
Laws by country[edit]
Common law countries[edit]
Rape was an offense under the common law of England. That offense became an offense under the law of other countries, including Australia and the United States, as a result of colonization or conquest, or the following cession (see British Empire).[39] It is discussed at Rape in English law § History.
Under this law, rape traditionally describes the act of a male forcing a female to have sexual intercourse (sexual penetration of the vagina by the penis) with him. Common law rape required the utmost physical resistance by the victim, as well as substantial force by the defendant. Until the late twentieth century, spousal rape was not considered a true rape case because both spouses were deemed to have consented to a lifelong sexual relationship through the wedding vows.[39] 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 force sexual intercourse has become less widely held.
Rape was also an offense at common law in Scotland. This offense was not derived from the English offense as Scotland retained its own system of criminal law under the terms of the Acts of Union 1707.
Bhutan[edit]
Chapter 14 (Sexual Offenses) of the 2004 Penal Code of Bhutan outlaws rape and other sexual offenses.[40] Under the criminal code, there are several categories of rape, which are punished differently, depending on factors such as the age of the victim, the relationship between the victim and the perpetrator, the number of participants (gang rape), whether the victim was pregnant, whether injury occurred. Marital rape is also recognized as an offense under the 2004 laws, being classified as a petty misdemeanour. The most serious form of rape is gang rape of a child under twelve years of age, classified as a felony of the first degree.