The act may be carried out by physical force, under threat or manipulation, by impersonation, or with a person who is incapable of giving valid consent.
Consent is also considered invalid if obtained under duress, or from a person who does not have the ability to understand the nature of the act, due to factors such as young age, mental disability, or substance intoxication.
[4] Many jurisdictions, such as Canada and several US and Australian states, no longer have a traditional common law offence of rape, which always required that sexual penetration had occurred.
[note 10] In Prosecutor v. Anto Furundžija, the International Criminal Tribunal for the former Yugoslavia included fellatio in the definition of rape, because [para 183]: "The Trial Chamber holds that the forced penetration of the mouth by the male sexual organ constitutes a most humiliating and degrading attack upon human dignity.
"[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.
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.
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.
[26][24] 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.
[36] Likewise, the suicide of female rape victims for reasons of shame is also historically documented in Chinese and Japanese culture.
[37] In recent years, there have been various guidelines and recommendations from international human rights organizations in regard to rape and sexual violence.
Consent is defined in section 273.1(1) of the Criminal Code as "the voluntary agreement of the complainant to engage in the sexual activity in question.
"[41] In the French penal code, [fr][42] any act of sexual penetration, whatever its nature, committed against another person or on the perpetrator, by violence, constraint, threat or surprise, is rape.
Rape is punished by a maximum of twenty years' criminal imprisonment in certain aggravating factors (including victim under age of 15).
The act also restricted reference to the alleged victim's past sexual history,[48][51] and provided anonymity for both parties.
Whoever, by physical or psychological violence, has vaginal, anal, or oral sexual intercourse with another person, or inserts any body part or object by these methods, or compels another to do so, shall be punished with imprisonment from eight to twelve years.
If that person allows sexual connection due to coercion (e.g., under force, threats or fear of force; when he/she is asleep or affected by alcohol or a drug; if he/she is affected by an intellectual, mental, or physical condition or impairment of a certain nature and degree; when he/she is mistaken about the partner's identity), then he/she is not legally consenting.
If the crime: then it is punishable with 4 to 10 years of imprisonment with possible subsequent restraint of liberty for up to 2 years (i.e. the criminal may not change or leave residence without permission and must register himself at local penal inspectorate 1 to 4 times a month; court may also impose additional restrictions such as the criminal may not leave home in certain hours, visit certain locations, change work without permission).
Any person who forces a person of the female sex by threats or violence, psychological pressure or by being made incapable of resistance to submit to sexual intercourse is liable to a custodial sentence of from one to ten years.Marital rape was made illegal in 1992, and since 2004 marital rape is prosecutable ex officio (meaning it can be prosecuted even if the wife does not complain).
(By general rules of statutory interpretation "words importing the masculine gender include the feminine," so the use of the male pronoun does not preclude a person who is legally recognized as female being convicted of rape.)
Section 2 of that act defines assault by penetration: Both are indictable offences carrying a maximum sentence of life imprisonment.
[88] No person is liable in tort under the law of Northern Ireland on the ground only of having deprived another of the services of his female servant by raping her.
Similarly to the English law, this act also creates various child sex offences in which consent is irrelevant if the victim is under 16.
In Scotland, rape was defined as "a crime at common law which consisted of the carnal knowledge of a female by a male person without her consent."
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.
[93]Penetration is sufficient for a sexual intercourse to be deemed rape: there need not be any excretion of semen and the female's hymen does not have to be ruptured.
The US laws on sexual violence are complex, with states having numerous sex offenses, dealing with different situations.
The Justice Department's survey solicits information from people 12 and older, excluding the youngest victims of rape (and incest).
It goes on to note that it fails to report rapes perpetrated against children, adolescents, the homeless, or people living in institutions, group facilities, or in households without telephones.
Rape crisis statistics can be found from the FBI[102] and the Bureau of Justice[103] as well as the CDC[104] and RAINN (which uses the other resources as its source).