Rape

RAPE is a type of sexual assault usually involving sexual intercourse, which is initiated by one or more persons against another person without that person’s consent. A person who commits an act of rape is known as a rapist.

The act may be carried out by physical force, coercion, abuse of authority or with a person who is incapable of valid consent. The term is most often defined in criminal law.

The definition of rape varies both in different parts of the world and at different times in history. It is defined in many jurisdictions as sexual intercourse, or other forms of sexual penetration, of one person by another person without the consent of the victim.

The United Nations defines it as “sexual intercourse without valid consent,” and the World Health Organisation defined it in 2002 as “physically forced or otherwise coerced penetration — even if slight — of the vulva or anus, using a penis, other body parts or an object”.

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.

Lack of consent may result from either forcible compulsion by the perpetrator or incapacity to consent on the part of the victim (such as persons who are asleep, intoxicated or otherwise mentally helpless).

The law can also invalidate consent in the case of sexual intercourse with a person below the age at which they can legally consent to such relations with older persons. Such cases are sometimes called statutory rape or “unlawful sexual intercourse”, regardless of whether it was consensual or not, as people who are under a certain age in relation to the perpetrator are deemed legally incapable of consenting to sex. Consent can always be withdrawn at any time, so that any further sexual activity after the withdrawal of consent constitutes rape.

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. Abuse of power may constitute duress. Marital rape, also known as spousal rape, is non-consensual sex in which the perpetrator is the victim’s spouse.

As such, it is a form of partner rape, of domestic violence, and of sexual abuse. Historically, and still in some countries, consent was assumed within the marriage contract, thus making spousal rape an impossibility; however, spousal rape is now repudiated by international conventions and increasingly criminalised.

In 2006, it was estimated that marital rape could be prosecuted in at least 104 countries (in four of these countries, marital rape could be prosecuted only when the spouses were judicially separated), and since 2006 several other countries have outlawed spousal rape.

In many countries, it is not clear if marital rape may or may not be prosecuted under ordinary rape laws.

However, in the absence of a spousal rape law it may be possible to bring prosecutions for what is effectively rape by characterising it as an assault.