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inst their will note 12 there is not always a requirement that the victim did not consent in the england and wales section 5 of the sexual offences act 2003 creates the offence of rape of a child under 13 and contains no reference to consent after describing the sexual act the offence prohibits the explanatory notes to the act say whether or not the child consented to this act is irrelevant 12 in m c v bulgaria 13 the european court of human rights ruled that the victim does not necessarily have to resist physically for the crime of rape to be committed para 166 t he court is persuaded that any rigid approach to the prosecution of sexual offences such as requiring proof of physical resistance in all circumstances risks leaving certain types of rape unpunished and thus jeopardising the effective protection of the individual s sexual autonomy in accordance with contemporary standards and trends in that area the member states positive obligations under articles 3 and 8 of the convention convention for the protection of human rights and fundamental freedoms must be seen as requiring the penalisation and effective prosecution of any non consensual sexual act including in the absence of physical resistance by the victim some circumstances such as where the victim is kidnapped or in detention or under conditions of war or genocide may be viewed as so coercive that they presume non consent altogether for example in icty the prosecutor v kunarac kovac and vukovic it was ruled in regard to the rape during the bosnian war where women were kept in detention centers under extremely harsh conditions and were selected for sex by soldiers and policemen that para 132 such detentions amount to circumstances that were so coercive as to negate any possibility of consent 14 the issue arises in law as who can legally consent for example with regard to persons who suffer from mental or physical disability although laws differ by jurisdiction emerging international standards suggest that a person s mental or physical disability should not in and of itself render the sexual interaction illegal but rather the exploitation or abuse of such disability by the perpetrator should do so in the european union the directive 2011 93 eu of the european parliament and of the council of 13 december 2011 reads with regard to the determination of legal consent of a child who is above the age of consent 10 disability by itself does not automatically constitute an impossibility to consent to sexual relations however the abuse of the existence of such a disability in order to engage in sexual activities with a child should be criminalised 15 redefinitions and statute edit general edit further information history of rape from the second part of the 20th century onwards the crime of rape has undergone major changes in definition in many countries especially in western countries it has evolved from its narrow traditional definition of forced penetration of a vagina by a penis outside of marriage to a broader definition which includes forced sex in marriage marital rape and may also include other sexual acts such as anal or oral sexual penetration the latter were traditionally dealt with under sodomy laws this redefinition of rape had the effect of defining rape of males in particular female on male rape made to penetrate there have also been changes in the legal definition of consent coercion 16 two different changes have been made in recent decades in many jurisdictions in regard to the criminal offense of rape as it relates to marital status the criminalization of rape between spouses marital rape the removal of the stipulation that if after the act of rape the victim and the perpetrator marry each other the prosecution ends marry your rapist law marital rape edit main articles marital rape and marital rape laws by country throughout much of the history rape in marriage was not a crime most cultures subscribed to the idea of the existence of conjugal rights to sexual intercourse with one s spouse and until well into the 20th century most legal systems generally accepted overtly or tacitly that such rights could be taken by force against the will of the wife traditional understanding and views of marriage rape sexuality gender roles and self determination have started to be challenged in most western countries during the 1960s and 1970s which has led to the subsequent criminalization of marital rape during the following decades with a few notable exceptions it was during the past 30 years when most laws against marital rape have been enacted several countries in eastern europe and scandinavia made spousal rape illegal before 1970 but other countries in western europe and the english speaking western world outlawed it much later mostly in the 1980s and 1990s 16 marital rape is included in the 1993 declaration on the elimination of violence against women as a form of violence against women which reads 17 violence against women shall be understood to encompass but not be limited to the following a physical sexual and psychological violence occurring in the family including battering sexual abuse of female children in the household dowry related violence marital rape female genital mutilation and other traditional practices harmful to women non spousal violence and violence related to exploitation it is also included in the council of europe recommendation rec 2002 5 of the committee of ministers to member states on the protection of women against violence 18 which reads this violence against women includes but is not limited to the following a violence occurring in the family or domestic unit including inter alia physical and mental aggression emotional and psychological abuse rape and sexual abuse incest rape between spouses regular or occasional partners and cohabitants crimes committed in the name of honour female genital and sexual mutilation and other traditional practices harmful to women such as forced marriages in addition the world health organization defines sexual violence as any sexual act attempt to obtain a sexual act unwanted sexual comments or advances or acts to traffic or otherwise directed against a person s sexuality using coercion by any person regardless of their relationship to the victim in any setting including but not limited to home and work 19 the countries which choose to ratify the council of europe convention on preventing and combating violence against women and domestic violence the first legally binding instrument in europe in the field of violence against women 20 are bound by its provisions to ensure that non consensual sexual acts committed against a spouse or partner are illegal 21 the convention came into force in august 2014 11 marry your rapist laws edit main article marry your rapist law a marry your rapist law or rape marriage law states that a rapist will not be prosecuted if they marry their victim although the terms for this phenomenon were only coined in the 2010s 22 23 24 the practice has been supported by the rape laws in many legal systems throughout history 25 in the late 20th and early 21st century the remaining laws of this type were increasingly challenged and repealed in a series of countries 26 24 as a crime of abduction edit originally in ancient rome rape was a crime defining primarily the act of a male abducting a female without the consent of the man under whose authority she was typically father or husband sexual intercourse was not necessary 27 furthermore in many legal systems such as 17th century france the consent of the woman to sexual intercourse was not a defense the act was still a crime if done without the consent of her father 28 while the laws on rape differed by historical period and culture some elements were common to most jurisdictions until the second part of the 20th century when rape laws underwent major changes rape was a crime that could be committed only between parties who were not married to each other and only by a male against a female punishment edit see also prison rape punishment of assailants edit punishment for rape in most countries today is imprisonment controversially some u s jurisdictions allow shorter sentences for sex criminals who agree to voluntary chemical castration in the past rape was often punished with death and it is punishable by death in at least nine countries today china afghanistan united arab emirates egypt iran saudi arabia pakistan and north korea in some of these instances special circumstances apply for example rape is only punishable by death in india if the victim dies or is put in a persistent vegetative state and or if the rapist is a repeat offender and in iran a death sentence for rape can be substituted with compensation with or without imprisonment and flogging if the victim so chooses in 1977 in coker v georgia the supreme court of the united states held that the death penalty for the crime of rape of an adult woman was cruel and unusual punishment and thus banned it as a violation of the eighth amendment to the united states constitution 29 in 2008 in kennedy v louisiana it ruled the same in regard to rape of a child 30 prison sentences for rape are not uniform a study made by the u s department of justice of prison releases in 1992 involving about 80 percent of the prison population found that the average sentence for convicted rapists was 9 8 years while the actual time served was 5 4 years this follows the typical pattern of violent crimes in the us where those convicted typically serve no more than half of their sentence 31 between 2002 and 2003 more than one in ten convicted rapists in victoria australia served a wholly suspended sentence and the average total effective sentence for rape was seven years 32 in the republic of ireland the average sentence given for rape is 5 7 years 33 punishment of victims edit main articles victim blaming honor killing and slut shaming some societies punish the victims of rape as well as the perpetrators according to such cultures being raped dishonors the victim and in many cases the victim s family in some countries e g libya afghanistan rape victims are sometimes killed to restore honor to the family s name 34 35 certain cultures have historically promoted a system of honor dishonor and shame which was applied with particular strictness to females a victim of rape would be considered to have lost her honorable reputation and place in society a loss of honor which entailed shame on the woman s family group as well in early ancient rome ancient china and other cultures a pressure has existed which has led women to commit suicide after becoming victims of rape in the shakespeare drama titus andronicus the title character kills his raped maimed daughter in what he believes to be a mercy killing 36 likewise the suicide of female rape victims for reasons of shame is also historically documented in chinese and japanese culture in countries which outlaw fornication or adultery rape victims may become subject to these laws if they cannot prove the rape case and or if it is revealed they were not virgins at the time of the assault in the case of unmarried victims 37 international guidelines recommendations and obligations edit main article international framework of sexual violence in recent years there have been various guidelines and recommendations from international human rights organizations in regard to rape and sexual violence one view that is advanced is that the offense of rape should be replaced with a broader offense of sexual assault for instance the handbook for legislation on violence against women from the un department of economic and social affairs division for the advancement of women gives these suggestions about legislation on sexual violence 38 legislation should define sexual assault as a violation of bodily integrity and sexual autonomy replace existing offences of rape and indecent assault with a broad offence of sexual assault graded based on harm provide for aggravating circumstances including but not limited to the age of the survivor the relationship of the perpetrator and survivor the use or threat of violence the presence of multiple perpetrators and grave physical or mental consequences of the attack on the victim remove any requirement that sexual assault be committed by force or violence and any requirement of proof of penetration and minimize secondary victimization of the complainant survivor in proceedings by enacting a definition of sexual assault that either requires the existence of unequivocal and voluntary agreement and requiring proof by the accused of steps taken to ascertain whether the complainant survivor was consenting or requires that the act take place in coercive circumstances and includes a broad range of coercive circumstances and specifically criminalize sexual assault within a relationship i e marital rape either by providing that sexual assault provisions apply irrespective of the nature of the relationship between the perpetrator and complainant or stating that no marriage or other relationship shall constitute a defence to a charge of sexual assault under the legislation the council of europe convention on preventing and combating violence against women and domestic violence also known as the istanbul convention which creates legally binding obligations for countries which choose to ratify it 20 reads 11 article 36 sexual violence including rape parties shall take the necessary legislative or other measures to ensure that the following intentional conducts are criminalised engaging in non consensual vaginal anal or oral penetration of a sexual nature of the body of another person with any bodily part or object engaging in other non consensual acts of a sexual nature with a person causing another person to engage in non consensual acts of a sexual nature with a third person consent must be given voluntarily as the result of the person s free will assessed in the context of the surrounding circumstances parties shall take the necessary legislative or other measures to ensure that the provisions of paragraph 1 also apply to acts committed against former or current spouses or partners as recognised by internal law article 36 must also be read together with article 43 11 which reads article 43 application of criminal offences the offences established in accordance with this convention shall apply irrespective of the nature of the relationship between victim and perpetrator laws by country edit common law countries edit rape was an offense under the common law of england that offense became an offense under the law of other countries including australia and the united states as a result of colonization or conquest or the following cession see british empire 39 it is discussed at rape in english law history under this law rape traditionally describes the act of a male forcing a female to have sexual intercourse sexual penetration of the vagina by the pe...
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