Laws about rape

Common law

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, 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 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 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 regard to belief of consent.

U.S. law

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 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 [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).

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 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 [1997] 1 Cr App R 36]

cots Law

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 [ 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 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). [ [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 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 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 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. [ [http://www.scotlawcom.gov.uk/html/cpsexualoffences.htm Scottish Law Commission] ] . The Scottish Government gave 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] ]

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