Laws about rape
common lawof the United Kingdom, Australiaand the United States, rape traditionally describes the act of one party forcing another to have sexual intercoursewith him or her. Until the late 20th Century, a husband forcing sex on his wife or a wife forcing sex on her husband was not considered "rape", since the woman or man (for certain purposes) was not considered a separate legal entity with the right of refusal, or sometimes was deemed to have given advanced consent to a life-long sexual relationship through the wedding vows. However, most Western common-law countries, as well as civil-law countries, have now legislated against this exception. They now include spousal rape( vaginal intercourse), and acts of sexual violence, such as forced anal intercoursewhich were traditionally dealt with under sodomy laws, in their definitions of "rape". The term "rape" is sometimes considered "loaded", and many jurisdictions recognize broader categories of sexual assaultor sexual battery instead.
There is a clear
mens reaelement in the law regarding rape, i.e. the accused must be aware that the victim is not consenting or might not be consenting. However, different jurisdictions vary in how they place the onus of proof with regard to belief of consent.
There is no national rape law in the
United States. 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. More than half the states use traditional sex-specific rape law, limited to male perpetration against females.
In many states, a female who is younger than a certain age or who has consumed alcohol is unable to give consent. Sexual activity in this situation is therefore automatically considered to be rape.
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). 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.
The latest official 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
2000report 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.
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 [http://www.fbi.gov/ucr/ucr.htm FBI] and the [http://www.ojp.usdoj.gov/bjs/abstract/rsarp00.htm Bureau of Justice] as well as the [http://www.cdc.gov/ncipc/factsheets/svfacts.htm CDC] and RAINN (who uses those resources as a source).
Sexual Offences Act 2003("the 2003 Act"), which came into force on May 1, 2004, rape in England and Wales was redefined from non-consensual vaginal or anal intercourse, and is now defined as non-consensual penile penetration of the vagina, anus or mouth. The forcing of a penis into a vagina by a female is criminalised, as it appears to be covered by section 4 of the Sexual Offences Act 2003- causing a person to engage in sexual activity without consent. The maximum sentence of life imprisonment was maintained under the new Act. It also altered the requirements of the defence of mistaken belief in consent so that one's belief must be now both genuine and reasonable (see above under common law).
Presumptions against that belief being reasonably held also now apply when violence is used or feared, the complainant is unconscious, unlawfully detained, drugged, or is by reason of disability unable to communicate a lack of consent. The change in this belief test from the old subjective test (what the defendant thought, reasonably or unreasonably) to an objective test was the subject of some debate (see [http://www.publications.parliament.uk/pa/ld200203/ldhansrd/vo030331/text/30331-15.htm] and [http://www.publications.parliament.uk/pa/cm200203/cmselect/cmhaff/639/63905.htm#a3] ), as it permits a man to be convicted of rape if he thought a person was consenting, were the circumstances thought by a jury to be unreasonable.
Any consent of the complainant is of no relevance if he or she is under the age of thirteen.
Under English law, it is possible for a woman to rape a man. Both women and men can be prosecuted for sexual assault under section 3 of the 2003 act if they touches a person of either sex sexually without consent. A person of either sex can also be prosecuted for intentionally causing another to engage in sexual activity without consent under section 4, a crime which carries a maximum life sentence if it involves penetration of the mouth, anus or vagina. Section 2 of the 2003 Act introduces a new sexual offence, "assault by penetration", with the same punishment as rape. It is committed when someone sexually penetrates the anus or vagina with a part of his or her body, or with an object, without that person's consent. [ [http://www.opsi.gov.uk/ACTS/acts2003/20030042.htm Sexual Offences Act 2003] at the Office of Public Sector Information.]
A woman assisting a man commit a rape can be prosecuted for the crime as an accessory. [DPP v K and B  1 Cr App R 36]
Scots Lawdiffers from the definition of rape in other legal systems. In Scotland, rape is defined as "a crime at common lawand consists of the carnal knowledgeof a female by a male person without her consent". Under Scots law, rape can only be carried out by a male who penetrates a female's vagina. There need not be any excretion of semen and the female's hymendoes not have to be ruptured for it to be deemed rape. If a man's anus is penetrated by another man's penis, this is called sodomyand is tried under indecent assault, a form of aggravated assault. Likewise, if a male penetrates 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[ Criminal Procedure (Scotland) Act 1995, section 3 ] 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 hearsayevidence, 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). [ [http://www.scotcourts.gov.uk/opinions/Refence%201.html Link to reference] at Scottish Court Service.] 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", has opened up the law to decide whether a voluntarily drunk or intoxicated woman can consent to sexual intercourse. The answer to this question is unclear.
Another perceived problem with the Scots law definition of rape is that "If a man has intercourse with a woman in the belief she is consenting to this he cannot be guilty of rape" (Jamieson v HMA). The belief must not be reckless, but neither must it be reasonable.
There also exists
statutelaws with regards to unlawful sexual intercourse. Section 5(1) of the Criminal Law (Consolidation) (Scotland) Act 1995states that it is an offence to have sex with a 12 year old girl, even with her consent. Section 5(3) of the Criminal Law (Consolidation)(Scotland) Act 1995 creates an offence for a male to have sexual intercourse with a 13 to 15 year old girl, again even with the female's consent. However, regardless of the age of the female, if she says no, the perpetrator can be charged with rape.
Note that there is a defence to Section 5(3) of the Criminal Law (Consolidation)(Scotland) Act 1995. That is where the male believed the female was his wife (e.g. married in a different country which allows marriage to a female under 16) or where the male had no reason to believe the female was under 16 and that the male was under 24 with no other previous sexual convictions.
Scotland has a very low conviction rate for rape (Rape Crisis Scotland put it at 5%, and down 0.5% from last year. Additionally, Rape Crisis Scotland estimate that only 20% of rapes are reported. "
The Scotsman" newspaper states that the conviction rate is 3.9%, but does not state a source for this figure.) The low conviction rate is possibly due to the fact that corroboration is needed (see above) in Scots criminal law.
Note that a woman who forces a man into a non-consensual sexual act can be prosecuted for sexual assault.
Reform of the Scots law of rape is proposed. In 2004 the
Scottish Law Commissionbegan working on a reference from the Scottish Executiveto "examine the law relating to rape and other sexual offences, and the evidential requirements for proving such offences, and to make recommendations for reform." and completed its report in December 2007. [ [http://www.scotlawcom.gov.uk/html/cpsexualoffences.htm Scottish Law Commission] ] . The Scottish Governmentgave a commitment to bring forward legislation in the light of the Commission's review. [ [http://www.scotland.gov.uk/Publications/2007/09/05093403/6 Scottish Government "Principles & Priorities" - Safer and Stronger Scotland] ] . On 17 June 2008, the Scottish Government introduced the Sexual Offences (Scotland) Bill to the Scottish Parliament. [ [http://www.scottish.parliament.uk/s3/bills/11-sexualOffences/index.htm Sexual Offences (Scotland) Bill] ]
Wikimedia Foundation. 2010.
Look at other dictionaries:
Rape crisis center — Rape crisis centers evolved in order to help victims of rape, sexual abuse, and other forms of sexual violence. Also referred to as Sexual Assault Centers, RCCs serve a number of purposes. Depending on the setup of an RCC, the organization will… … Wikipedia
Rape — This article is about a form of sexual assault. For other uses, see Rape (disambiguation). Sexual assault Classification and external resources … Wikipedia
Laws regarding child pornography — Main article: Child pornography 94 of 187 Interpol member states had laws specifically addressing child pornography as of 2008. Of those 94 countries, 58 criminalized possession of child pornography regardless of intent to distribute.… … Wikipedia
Rape shield law — A rape shield law in the United States of America and Canada is a law that limits a defendant s ability to cross examine rape complainants about their past sexual behaviour. The term also refers to a law that prohibits the publication of the… … Wikipedia
Rape by gender — This article classifies types of rape by the sex of both the rapist and the victim. The scope of the article includes both rape and sexual violence more generally. Since only a small percentage of acts of sexual violence are brought to the… … Wikipedia
About-Picard law — The 2001 About Picard law [abu pika:r] (named after French parliament members Nicolas About and Catherine Picard), a piece of French legislation, broadly speaking, makes it possible to act against organisations (legal entities) when such… … Wikipedia
rape — rape1 rapable, rapeable, adj. rapist, raper, n. /rayp/, n., v., raped, raping. n. 1. the unlawful compelling of a woman through physical force or duress to have sexual intercourse. 2. any act of sexual intercourse that is forced upon a person. 3 … Universalium
Rape kit — A sexual assault evidence collection kit, sexual assault forensic evidence (SAFE) kit or Sexual Offense Evidence Collection (SOEC) kit in New York [ [http://criminaljustice.state.ny.us/ofpa/evidencekit.htm DCJS] ] is a set of items used by… … Wikipedia
laws and justice — Fortunately for interested modern observers, a number of legal codes, individual laws, and trial records have survived from ancient Mesopotamia. These laws did not cover every aspect of life by any means, but they were often surprisingly… … Ancient Mesopotamia dictioary
Types of rape — Rape can be categorized in different ways: for example, by reference to the situation in which it occurs, by the identity or characteristics of the victim, and/or by the identity or characteristics of the perpetrator. These categories are… … Wikipedia