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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,where the person is under threat, or with a person who is incapable of valid consent.[1][2][3][4] 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 that were previously covered by rape, to the term sexual assault,[5][6] including Canada.
Definitions of "rape" vary, and though rape is usually dependent upon on whether or not consent was present during the act,[1][2][3][4] 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).[4] 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]
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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.
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 a hermaphrodite who might arguably be neither a woman nor a man)[note 8] or having "sexual connection" with a person effected 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]
Countries around the world differ in how they deal with the mens rea 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.
Rape has been defined so as to require proof that the sexual act in question was done without the victim's consent,[note 11] or so as to require proof that it was done either without their consent or, alternatively, against their will.[note 12]
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".[7]
Rape was an offence under the common law 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.
Today, most Western common-law countries, as well as civil-law countries, have legislated against spousal rape. They now include spousal rape (vaginal intercourse), and acts of sexual violence, such as forced anal intercourse which were traditionally dealt with under sodomy laws, 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). [3] 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,[8] and the last North Carolina in 1993.[9] Other developing countries have outlawed it in the 2000s.
Punishment for rape in most countries today is imprisonment, but until the late twentieth century, some states of the U.S., 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.[10]
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.[11]
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.
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 [4]. 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.
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.
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.
Penal Code, Art. 336 par. 1 creates the offence of rape.[12] It reads:
1. 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.
Article 128 [13] 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:
Person A rapes person B if person A has sexual connection with person B, effected by the penetration of person B's genitalia by person A's penis,—
- (a) without person B's consent to the connection; and
- (b) without believing on reasonable grounds that person B consents to the connection.
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."
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 [14]
(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—
(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).[15]
Article 129A [16] 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 [17] outlaws Indecent assault. Article 138[18] outlaws Sexual exploitation of person with significant impairment.
In Norway, rape is defined as either:
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 diseases (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.
Article 266-A of the Revised Penal Code (Title Eight of Act No. 3815) provides that:
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.
According to the Article 131 of the Criminal Code of Russia, rape is defined as heterosexual vaginal 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.[20]
In South Africa, 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:[21]
Any person ("A") who unlawfully and intentionally commits an act of sexual penetration with a complainant ("B"), without the consent of B, is guilty of the offence of rape.
and "sexual penetration" is defined as:
any act which causes penetration to any extent whatsoever by—
- (a) the genital organs of one person into or beyond the genital organs, anus, or mouth of another person;
- (b) any other part of the body of one person or, any object, including any part of the body of an animal, into or beyond the genital organs or anus of another person; or
- (c) the genital organs of an animal, into or beyond the mouth of another person[.]
Rape is a statutory offence. It is created by section 1 of the Sexual Offences Act 2003.
Definition of rape
Rape is defined as follows:[22]
Rape
- (1) A person (A) commits an offence if—
- (a) he intentionally penetrates the vagina, anus or mouth of another person (B) with his penis,
- (b) B does not consent to the penetration, and
- (c) A does not reasonably believe that B consents.
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 offence of rape was abolished by article 5(6) of that Order.
Rape is defined as follows:[23]
- Rape
- (1) A person (A) commits an offence if—
- (a) he intentionally penetrates the vagina, anus or mouth of another person (B) with his penis,
- (b) B does not consent to the penetration, and
- (c) A does not reasonably believe that B consents.
Any reference to rape in a statutory provision must be construed in accordance with article 5(1) of the said Order.[24]
This is a statutory offence created by article 12 of the said Order.
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.[25]
Rape is a statutory offence. It is created by section 1 of the Sexual Offences (Scotland) Act 2009.
Rape is defined as follows:[26]
Rape
penetrates to any extent, either intending to do so or reckless as to whether there is penetration, the vagina, anus or mouth of B then A commits an offence, to be known as the offence of rape.
- (1) If a person (“A”), with A's penis—
- (a) without another person (“B”) consenting, and
- (b) without any reasonable belief that B consents,
This offence is created by section 18 of the Sexual Offences (Scotland) Act 2009.
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 [27] 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).[28] 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. [29]
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.[30] This Act came into force on 1 December 2010.[31] 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.[32]
There is no national 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. 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.[33]
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
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). 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.
Rape crisis statistics can be found from the FBI[34] and the Bureau of Justice[35] as well as the CDC[36] and RAINN (which uses the other resources as its source).
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