Laws about rape

Law

Common law

In the common law of the United Kingdom, Australia and the United States, rape traditionally describes the act of a man who forces a woman to have sexual intercourse with him. Until the late 20th Century, a husband forcing sex on his wife was not considered "rape", since a woman (for certain purposes) was not considered a separate legal person 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 intercourse which were traditionally barred under sodomy laws, in their definitions of "rape". The term "rape" is sometimes considered "loaded", and many jurisdictions recognize broader categories of sexual assault or sexual battery instead.

There is a clear 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. However, different jurisdictions vary in how they place the onus of proof with regards to belief of consent.

Under English law, until May 2005, a "genuine" belief that the victim was consenting, even if unreasonable, was sufficient. The law was changed so that belief of consent is now only a defense if the belief is both genuine and reasonable.

U.S. law

There is no national rape law in the United States. Each state has its own laws concerning sexual aggression. More than half the states use narrowly defined, traditional laws that focus on the institutional, gender-specific (male perpetrator/female victim), and sexual nature of the crime. The other states use liberalized laws that place greater emphasis on the individual, gender-neutral, and violent nature of sexual coercion. However, current laws in approximately 12 states still have not acknowledged female-perpetrated sexual coercion as a potential variation of sexual aggression. Thus there is no single, universal, gender-neutral legal classification about what constitutes rape in the United States in 2006. See also: Rape Shield Law

English law

Under the Sexual Offences Act 2003, 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 penis penetration of the vagina, anus or mouth of another person. 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.

Any consent of the complainant is of no relevance if he or she is under the age of thirteen.

Although a woman who forces a man to have sex cannot be prosecuted for rape under English law, if she helps a man commit a rape she can be prosecuted for the crime. A woman can also be prosecuted for causing a man to engage in sexual activity without his consent, a crime which also carries a maximum life sentence if it involves penetration of the mouth, anus or vagina. The statute introduces a new sexual crime, "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.

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:

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 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.

In addition, since there is no national standard, much less a uniform national standard for defining and reporting male-male and female-perpetrated rapes, since more than half the states use traditional gender-specific (limited to male perpetration against females) rape law, and since rape laws in approximately 12 states do not even acknowledge the possibility, much less the occurrence, of female-perpetrated rape, the occurrences of these types of rape are likely to be significantly underreported as compared to the well-known but biased reports of rapes perpetrated by men against women.

United States: rape statistics

Rape crisis statistics can be found from the FBI and the Bureau of Justice as well as the CDC and RAINN (who uses those resources as a source).

See also: victim's rights amendment, victim advocacy

External links

Rape Law books and articles on Questia

Find law legal dictionary

Legal definition of rape from findlaw by state

Other legal resources: Black's Law Dictionary, 8th

Center for Disease Control operational definition of sexual assault

Definition of rape from the Uniform Crime Reports From the National Atlas - scroll down. (Does not include male rape)

References

Konradi, Amanda,(1996) Understanding rape survivors' preparations for court. Violence Against Women, 2 (1), p25, 37p, 2 charts

Bledsoe, RL and Boczek, BA International law dictionary, Santa Barbara, Calif, ABC-CLIO, 1987.

Location:Law Ref 341.03 4. This has 368 entries grouped by subject matter into twelve chapters.

Fox, JR Dictionary of international and comparative law, 2nd ed, New York, Oceana Publications, 1997

Location: Law Ref 341.03 6A This has journal abbreviations, popular international law case and convention names.

Parry, C et al Encyclopaedic dictionary of international law, New York, Oceana Publications, 1986

Location: Law Ref 341.03 3. This too includes journal abbreviations, popular international law case and convention names.

Encyclopaedia of public international law, Amsterdam, North-Holland Publishing Co, 1981-1990, Vols 1-12. Location: Law Ref 341.03 1. Each volume covers a particular subject then within each volume are numerous entries. This was updated, partly in 1992 and 1995 with the publication of Encyclopaedia of public international law, Vol 1 A-D; Vol 2 E-I. Other volumes forthcoming.

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