|Sex and the law|
(May vary according to jurisdiction)
Adultery · Buggery
|Sexuality · Criminal justice · Law|
Rape, sometimes referred to as sexual assault, is an assault by a person involving sexual intercourse with or sexual penetration of another person without that person's consent. Most contemporary jurisdictions maintain laws which treat rape as a serious sex crime, as well as a civil assault.
In the common law of the United Kingdom, Australia and the United States, rape traditionally describes the act of one party forcing another to have sexual intercourse with him or her. Until the late 20th Century, spousal rape 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. As the concept of human rights has developed, the belief of a marital right to sexual intercourse has become less widely held. 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).  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, and the last North Carolina in 1993. Other developing countries have outlawed it in the 2000s.
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.
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".
Section 265 of the Criminal Code of Canada defines the offenses of assault and sexual assault.
Section 271 criminalizes "Sexual assault", section 272 criminalizes "Sexual assault with a weapon, threats to a third party or causing bodily harm" and section 273 criminalizes "Aggravated sexual assault".
The absence of consent defines the crime of sexual assault. Section 273.1 (1) defines consent, section 273.1 (2) outlines certain circumstances where "no consent" is obtained, while section 273.1 (3) states that subsection (2) does not limit the circumstances where "no consent" is obtained (i.e. subsection (2) describes some circumstances which deem the act to be non-consensual, but other circumstances, not described in this section, can also deem the act as having been committed without consent). "No consent" to sexual assault is also subject to Section 265 (3), which also outlines several situations where the act is deemed non-consensual.
- Meaning of “consent”
273.1 (1) Subject to subsection (2) and subsection 265(3), “consent” means, for the purposes of sections 271, 272 and 273, the voluntary agreement of the complainant to engage in the sexual activity in question.
Where no consent obtained
(2) No consent is obtained, for the purposes of sections 271, 272 and 273, where (a) the agreement is expressed by the words or conduct of a person other than the complainant; (b) the complainant is incapable of consenting to the activity; (c) the accused induces the complainant to engage in the activity by abusing a position of trust, power or authority; (d) the complainant expresses, by words or conduct, a lack of agreement to engage in the activity; or (e) the complainant, having consented to engage in sexual activity, expresses, by words or conduct, a lack of agreement to continue to engage in the activity.
Subsection (2) not limiting
(3) Nothing in subsection (2) shall be construed as limiting the circumstances in which no consent is obtained.
- Section 265(3)
(3) For the purposes of this section, no consent is obtained where the complainant submits or does not resist by reason of (a) the application of force to the complainant or to a person other than the complainant; (b) threats or fear of the application of force to the complainant or to a person other than the complainant; (c) fraud; or (d) the exercise of authority.
In accordance with 265 (4) an accused may use the defense that he believed that the complainant consented, but such a defence may be used only when "a judge, if satisfied that there is sufficient evidence and that, if believed by the jury, the evidence would constitute a defence, shall instruct the jury when reviewing all the evidence relating to the determination of the honesty of the accused's belief, to consider the presence or absence of reasonable grounds for that belief"; furthermore according to section 273.2(b) the accused must show that he took reasonable steps in order to ascertain the complainant's consent, also 273.2(a) states that if the accused's belief steams from self-induced intoxication, or recklessness or wilful blindness than such belief is not a defense.
- 265 (4)
Accused’s belief as to consent
(4) Where an accused alleges that he believed that the complainant consented to the conduct that is the subject-matter of the charge, a judge, if satisfied that there is sufficient evidence and that, if believed by the jury, the evidence would constitute a defence, shall instruct the jury, when reviewing all the evidence relating to the determination of the honesty of the accused’s belief, to consider the presence or absence of reasonable grounds for that belief.
- Where belief in consent not a defence
273.2 It is not a defence to a charge under section 271, 272 or 273 that the accused believed that the complainant consented to the activity that forms the subject-matter of the charge, where (a) the accused’s belief arose from the accused’s
(i) self-induced intoxication, or
(ii) recklessness or wilful blindness; or (b) the accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting.
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.
Article 128  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) than he/she is not legally consenting.
128A Allowing sexual activity does not amount to consent in some circumstances 
(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—
- (a) force applied to him or her or some other person; or
- (b) the threat (express or implied) of the application of force to him or her or some other person; or
- (c) the fear of the application of force to him or her or some other person.
(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,—
- allows includes acquiesces in, submits to, participates in, and undertakes
- sexual activity, in relation to a person, means—
- (a) sexual connection with the person; or
- (b) the doing on the person of an indecent act that, without the person's consent, would be an indecent assault of the person.
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.
In Norway, rape is defined as either:
- 1. obtaining sexual intercourse by means of violence or threatening behaviour,
- 2. having sexual intercourse with somebody who is unconscious or unable to resist such action, or
- 3. by means of violence or threatening behaviour causes a person to have sexual intercourse with another, or to conduct similar actions with himself.
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
- a. by multiple persons in cooperation (gang rape)
- b. on a particularly painful or offensive way
- c. by a person previously convicted of rape or sexual intercourse with children (§ 195)
- d. in such a way that the victim either dies or receives grievous bodily harm.
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.
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:
- was committed repeatedly (against 1 or more than 1 victim)
- was committed by a group of criminals
- was committed with a threat of murder or grievous harm to the health
- was committed with particular cruelty
- caused an STD infection
then it is punishable with 4 to 10 years of imprisonment.
If the crime
- Was committed against a person under 18 years
- Caused the grievous harm to the health, HIV infection or other grievous consequences
then it is punishable with 8 to 15 years of imprisonment.
If the crime
- Caused the death of the victim by inadvertency
- Was committed against a person under 14 years
then it is punishable with 12 to 20 years of imprisonment.
United Kingdom laws
|“||1-(1) A person (A) commits an offence if—
(2) 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.
Under the 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  and ), 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, but the woman would be prosecuted for the offence of assault by penetration and not for the offence of rape. Both women and men can be prosecuted for sexual assault under section 3 of the 2003 act if they touch 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.
A woman assisting a man commit a rape can be prosecuted for the crime as an accessory.
Currently, rape in Scots Law differs from the definition of rape in other legal systems. In Scotland, rape is defined as "a crime at common law and consists of the carnal knowledge of 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 hymen does 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 sodomy and 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  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). 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 statute laws with regards to unlawful sexual intercourse. Section 5(1) of the Criminal Law (Consolidation) (Scotland) Act 1995 states 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 because 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 under way. In 2004 the Scottish Law Commission began working on a reference from the Scottish Executive to "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.. The Scottish Government gave a commitment to bring forward legislation in the light of the Commission's review.. On 17 June 2008, the Scottish Government introduced the Sexual Offences (Scotland) Bill to the Scottish Parliament.. The Bill was passed by the Parliament on 10 June 2009 .
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.
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.
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.
United States: rape statistics
- Marital rape: Drive for tougher laws is pressed, 13 May 1987]
- http://www.russian-criminal-code.com/PartII/SectionVII/Chapter18.html Articles 131-135
- Sexual Offences Act 2003 at the Office of Public Sector Information.
- DPP v K and B  1 Cr App R 36
- Criminal Procedure (Scotland) Act 1995, section 3
- Link to reference at Scottish Court Service.
- Scottish Law Commission
- Scottish Government "Principles & Priorities" - Safer and Stronger Scotland
- Sexual Offences (Scotland) Bill
- Scottish Government news release