Laws regarding 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, or a female that forces a male to have sexual intercourse with 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 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 or female perpetrator/male 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.

English law

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 separataly criminalised. 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 [1] and [2]), 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.

A woman who forces a man to have sex can be prosecuted for rape under section 3 of the 2003 Act. A woman assisting a man commit a rape can be prosecuted for the crime as an accessory. A woman can also be prosecuted for causing a man to engage in sexual activity without his consent under section 4 of the 2003 Act, a crime which also 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. The policy of the 2003 Act is to make offences gender neutral.

Scots Law

Rape in Scots Law differs to 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 or male by a female or male person without his/her consent". Meaning that in Scots Law, rape can be carried out by a male or female who penetrates the vagina or anus to the slightest extent. There needs not be any excretion of semen or the female's hymen does not have to be ruptured for it to be deemed rape. In Scotland if a man's anus is penetrated by another man's penis, or by a woman's finger or any other object, this is called sodomy and is tried under the same law as rape. It is also rape for a male or female to have sexual intercourse with a male or female under 12 years of age, even if he/she is willing, or with a male or female who is incapable through mental abnormality of giving her proper consent. In Scotland, rape is prosecuted in the High Court under Solemn Procedure and if convicted, the minimum penalty would be 3 years. Evidence of distress can also be used as corroborative 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 or female of rape is to prove that the male or female had sexual intercourse without the female's or male'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 or man to be 'passive', he/she must actively consent (Lord Advocate's Reference (No. 1 of 2001). Therefore a male or female could still be convicted of rape, even though the male or female did not say anything or show any resistance. The reason for this is that there have been cases where assailants have committed rape whilst being intoxicated to a level where they could not resist or say no.

Another perceived problem with the Scots law definition of rape is that "If a man or woman has intercourse with a man or woman in the belief she is consenting to this he/she cannot be guilty of rape" (Jamieson v HMA).

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, even with her consent. Section 5(3) of the Criminal Law (Consolidation)(Scotland) Act 1995 creates an offence for a male or female to have sexual intercourse with a 13, 14 and 15 year old girl or boy, again even with the female's or male's consent. However, regardless of the age of the female or male, if he or she says no, it reverts to Common Law rape.

However, as with most statutes, there is a defence to Section 5(3) of the Criminal Law (Consolidation)(Scotland) Act 1995. That is where the male or female believed the female or male was his/her wife or husband (e.g. married in a different country which allows marriage to a female under 16) or where the male or female had no reason to believe the female or male was under 16 and that the male or female was under 24 with no other previous sexual convictions.

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 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, 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 FBI and the Bureau of Justice as well as the CDC and RAINN (who uses those resources as a source).