Notes Week 7
In criminal law, rape is an assault by a person involving sexual intercourse with another person without that person’s consent. Outside of law, the term is often used interchangeably with sexual assault, a closely related (but in most jurisdictions technically distinct) form of assault typically including rape and other forms of non-consensual sexual activity.
The rate of reporting, prosecution and convictions for rape varies considerably in different jurisdictions. The U.S. Bureau of Justice Statistics (1999) estimated that 91% of U.S. rape victims are female and 9% are male, with 99% of the offenders being male. In one survey of women, only two percent of respondents who stated they were sexually assaulted said that the assault was perpetrated by a stranger. Several studies argue that male-male prisoner rape might be the most common and least-reported form of rape, with some studies suggesting such rapes are substantially more common in both per-capita and raw-number totals than male-female rapes in the general population.
When part of a widespread and systematic practice, rape and sexual slavery are recognized as crimes against humanity and war crimes. Rape is also recognized as an element of the crime of genocide when committed with the intent to destroy, in whole or in part, a targeted ethnic group.
In any allegation of rape, the absence of consent to sexual intercourse on the part of the victim is critical. Consent need not be expressed, and may be implied from the context and from the relationship of the parties, but the absence of objection does not of itself constitute consent.
... person is guilty of sexual assault of a spouse when that person engages in sexual intercourse or sexual intrusion with his or her spouse without the consent ... happen concurrently or before or after the sexual assault. Sadistic /obsessive rape: Husbands use torture or perverse sexual acts. Pornography is often involved. Women ...
Duress, in which the victim may be subject to or threatened by overwhelming force or violence, and which may result in absence of objection to intercourse, leads to the presumption of lack of consent. Duress may be actual or threatened force or violence against the victim or somebody else close to the victim. Even blackmail may constitute duress. The International Criminal Tribunal for Rwanda in its landmark 1998 judgment used a definition of rape which did not use the word ‘consent’: “a physical invasion of a sexual nature committed on a person under circumstances which are coercive.”
Valid consent is also lacking if the victim lacks an actual capacity to give consent, as in the case of a victim who is a child, or who has a mental impairment or developmental disability. Consent can always be withdrawn at any time, so that any further sexual activity after the withdrawal of consent constitutes rape.
The law would invalidate consent in the case of sexual intercourse with a person below the age at which they can legally consent to such relations. (See age of consent.) Such cases are sometimes called statutory rape or “unlawful sexual intercourse”, regardless of whether it was consensual or not.
In times gone by and in many countries still today marriage is said to constitute at least an implied consent to sexual intercourse. However, marriage in many countries today is no longer a defense to rape or assault. In some jurisdictions, a person cannot be found guilty of the rape of a spouse, either on the basis of “implied consent” or (in the case of former British colonies) because of a statutory requirement that the intercourse must have been “unlawful” (which is legal nomenclature for outside of wedlock).
However, in many of those jurisdictions it is still possible to bring prosecutions for what is effectively rape by characterizing it as an assault.