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. 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.
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.Shannon Brennan and Andrea Taylor-Butts, Sexual Assault in Canada 2004 and 2007 (Ottawa: Statistics Canada (Canadian Centre for Justice Statistics), 2008)), p. 7.
Terminology and definitions
Classification Depending on the jurisdiction, rape may be characterized as a sexual offenceFor example, by the Sexual Offences Act 1956 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 assaultFor example, in England and Wales before the enactment of the Sexual Offences Act 2003: R v Hodgson 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 assaultFor example, in England and Wales after the enactment of the Sexual Offences Act 2003 or battery, or both.
Actus reus 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,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 an intersex person 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 affected 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
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."
Mens rea 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."
In some jurisdictions the mens rea is quite complex, such as in New South Wales, where the law reads:
The Explanatory Report of the Istanbul Convention, states at para 189: "The interpretation of the word 'intentionally' is left to domestic law, but the requirement for intentional conduct relates to all the elements of the offence." [in regard to Article 36 of the convention – Sexual violence, including rape].
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 2003 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."Sexual Offences Act 2003: Explanatory Notes, paragraph 14
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]:
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."
Redefinitions and statute
General
From the second part of the 20th century onwards, the crime of rape has undergone major changes in definition in many countries, especially in Western countries. It has evolved from its narrow traditional definition of forced penetration of a vagina by a penis, outside of marriage, to a broader definition, which includes forced sex in marriage (marital rape), and may also include other sexual acts (such as anal or oral sexual penetration); the latter were traditionally dealt with under sodomy laws. This redefinition of rape had the effect of defining rape of males, in particular female-on-male rape (made to penetrate). There have also been changes in the legal definition of consent/coercion.
Two different changes have been made in recent decades in many jurisdictions in regard to the criminal offense of rape as it relates to marital status:
the criminalization of rape between spouses ('marital rape'). the removal of the stipulation that, if after the act of rape the victim and the perpetrator marry each other, the prosecution ends ('marry-your-rapist law').
Marital rape
Throughout much of the history, rape in marriage was not a crime. Most cultures subscribed to the idea of the existence of 'conjugal rights' to sexual intercourse with one's spouse, and, until well into the 20th century, most legal systems generally accepted, overtly or tacitly, that such 'rights' could be taken by force, against the will of the wife. Traditional understanding and views of marriage, rape, sexuality, gender roles and self determination have started to be challenged in most Western countries during the 1960s and 1970s, which has led to the subsequent criminalization of marital rape during the following decades. With a few notable exceptions, it was during the past 30 years when most laws against marital rape have been enacted. Several countries in Eastern Europe and Scandinavia made spousal rape illegal before 1970, but other countries in Western Europe and the English-speaking Western World outlawed it much later, mostly in the 1980s and 1990s.
Marital rape is included in the 1993 Declaration on the Elimination of Violence Against Women as a form of violence against women, which reads:
It is also included in the Council of Europe Recommendation Rec(2002)5 of the Committee of Ministers to member states on the protection of women against violence, which reads:
In addition, the World Health Organization, defines sexual violence as: "any sexual act, attempt to obtain a sexual act, unwanted sexual comments or advances, or acts to traffic, or otherwise directed, against a person's sexuality using coercion, by any person regardless of their relationship to the victim, in any setting, including but not limited to home and work."
The countries which choose to ratify the Council of Europe Convention on preventing and combating violence against women and domestic violence, the first legally binding instrument in Europe in the field of violence against women, are bound by its provisions to ensure that non-consensual sexual acts committed against a spouse or partner are illegal.See Article 36 – Sexual violence, including rape para 3; and Article 43 – Application of criminal offences . Also see the Explanatory Report , para 194, para 219 and para 220. The convention came into force in August 2014.
Marry-your-rapist laws
A marry-your-rapist law or rape-marriage law states that a rapist will not be prosecuted if they marry their victim. Although the terms for this phenomenon were only coined in the 2010s, the practice has been supported by the rape laws in many legal systems throughout history. In the late 20th and early 21st century, the remaining laws of this type were increasingly challenged and repealed in a series of countries.
As a crime of abduction