|Classification and external resources|
Konstantin Makovsky, The Bulgarian martyresses, a painting depicting the atrocities of bashibazouks in Bulgaria during the Russo-Turkish War (1877–1878)
|Part of the common law series|
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|Defenses to liability|
|Defense of self
Defence of property
Consent · Diminished responsibility
Duress · Entrapment
Ignorantia juris non excusat
Infancy · Insanity
Justification · Mistake (of law)
Necessity · Provocation
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|Criminal justice · Law|
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. For men, male-male rape in prisons has been a significant problem. 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.
Though definitions vary, rape is defined in most jurisdictions as sexual intercourse, or other forms of sexual penetration, by one person ("the accused" or "the perpetrator") with or against another person ("the victim") without the consent of the victim.
The term sexual assault is closely related to rape. Some jurisdictions define "rape" to cover only acts involving penile penetration of the vagina, treating all other types of non-consensual sexual activity as sexual assault. The terminology varies, with some places using other terms. For example, Michigan, United States uses the term "criminal sexual conduct". In some jurisdictions, rape is defined in terms of sexual penetration of the victim, which may include penetration with objects, rather than body parts. Some jurisdictions also consider rape to include the use of sexual organs of one or both of the parties, such as oral copulation and masturbation.
In Brazil, the definition of rape is even more restrictive. It is defined as non-consensual vaginal sex. Therefore, unlike most of Europe and the Americas, male rape, anal rape, and oral rape are not considered to be rape. Instead, such an act is called a "violent attempt against someone's modesty" ("Atentado violento ao pudor").
In recent years, women have been convicted of raping or sexually assaulting men. Also, in recent years women have also been convicted of rape or sexual assault by procuring a man to rape another woman, and by being an accomplice to a rape.
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.
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.
There are several types of rape, generally categorized by reference to the situation in which it occurs, the sex or characteristics of the victim, and/or the sex or characteristics of the perpetrator. Different types of rape include but are not limited to: date rape, gang rape, marital rape or spousal rape, incestual rape, child sexual abuse, prison rape, acquaintance rape, war rape and statutory rape.
There is no single theory that conclusively explains the motivation for rape; the motives of rapists can be multi-factorial and are subject to debate. Several factors have been proposed: anger, a desire for power, sadism, sexual gratification, and evolutionary pressures.
It is argued that rape, as a reproductive strategy, is encountered in many instances in the animal kingdom (i.e: ducks, geese, and certain dolphin species). It is difficult to determine what constitutes rape among animals, as the lack of informed consent defines rape among humans. See also Non-human animal sexuality.
Sociobiologists Thornhill and Palmer argue that the ability to understand rape, and thereby prevent it, is severely compromised because its basis in human evolution has been ignored. Studies by these sociobiologists indicate that it is an evolutionary strategy for certain males who lack the ability to persuade the female by non-violent means to pass on their genes.
American social critic Camille Paglia has argued that a victim-blaming intuition may have a non-psychological component in some cases. She states that sociobiological models suggest that it may be genetically-ingrained for certain men and women to allow themselves to be more vulnerable to rape, and that this may be a biological feature of members of the species.
Rape, in the course of war, dates back to antiquity, ancient enough to have been mentioned in the Bible. The Israelite, Persian, Greek and Roman armies reportedly engaged in war rape. The Mongols, who established the Mongol Empire across much of Eurasia, caused much destruction during their invasions. Documents written during or after Genghis Khan's reign say that after a conquest, the Mongol soldiers looted, pillaged and raped.
The systematic rape of as many as 80,000 women by the Japanese soldiers during the six weeks of the Nanking Massacre is an example of such atrocities. During World War II an estimated 200,000 Korean and Chinese women were forced into prostitution in Japanese military brothels, as so-called "comfort women". French Moroccan troops known as Goumiers committed rapes and other war crimes after the Battle of Monte Cassino. (See Marocchinate.) The Red Army carried out a massive campaign of gang rape as they went through Germany.
It has been alleged that an estimated 200,000 women were raped during the Bangladesh Liberation War by the Pakistani army (though this has been disputed by many including the Indian academic Sarmila Bose ), and that at least 20,000 Bosnian Muslim women were raped by Serb forces during the Bosnian War. Wartime propaganda often alleges, and exaggerates, mistreatment of the civilian population by enemy forces and allegations of rape figure prominently in this. As a result, it is often very difficult, both practically and politically, to assemble an accurate view of what really happened.
Commenting on rape of women and children in recent African conflict zones UNICEF said that rape was no longer just perpetrated by combatants but also by civilians. According to UNICEF rape is common in countries affected by wars and natural disasters, drawing a link between the occurrence of sexual violence with the significant uprooting of a society and the crumbling of social norms. UNICEF states that in Kenya reported cases of sexual violence doubled within days of post-election conflicts. According to UNICEF rape was prevalent in conflict zones in Sudan, Chad and the Democratic Republic of Congo. It is estimated that more than 200,000 females living in the Democratic Republic of the Congo today have been raped in recent conflicts. Some estimate that around 60% of combatants in Congo are HIV-infected.
In 1998, the International Criminal Tribunal for Rwanda found that systematic rape was used in the Rwandan genocide. The Tribunal held that "sexual assault [in Rwanda] formed an integral part of the process of destroying the Tutsi ethnic group and that the rape was systematic and had been perpetrated against Tutsi women only, manifesting the specific intent required for those acts to constitute genocide." An estimated 500,000 women were raped during the 1994 Rwandan Genocide.
The Rome Statute, which defines the jurisdiction of the International Criminal Court, recognizes rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, "or any other form of sexual violence of comparable gravity" as crime against humanity if the action is part of a widespread or systematic practice.
Rape was first recognized as crime against humanity when the International Criminal Tribunal for the former Yugoslavia issued arrest warrants based on the Geneva Conventions and Violations of the Laws or Customs of War. Specifically, it was recognised that Muslim women in Foca (southeastern Bosnia and Herzegovina) were subjected to systematic and widespread gang rape, torture and enslavement by Bosnian Serb soldiers, policemen and members of paramilitary groups after the takeover of the city in April 1992.
The indictment was of major legal significance and was the first time that sexual assaults were investigated for the purpose of prosecution under the rubric of torture and enslavement as a crime against humanity. The indictment was confirmed by a 2001 verdict of the International Criminal Tribunal for the former Yugoslavia that rape and sexual enslavement are crimes against humanity. Amnesty International stated that the ruling challenged the widespread acceptance of the torture of women as an intrinsic part of war.
Victims of rape can be severely traumatized by the assault and may have difficulty functioning as well as they had been used to prior to the assault, with disruption of concentration, sleeping patterns and eating habits, for example. They may feel jumpy or be on edge. After being raped it is common for the victim to experience Acute Stress Disorder, including symptoms similar to those of posttraumatic stress disorder, such as intense, sometimes unpredictable, emotions, and they may find it hard to deal with their memories of the event. In the months immediately following the assault these problems may be severe and very upsetting and may prevent the victim from revealing their ordeal to friends or family, or seeking police or medical assistance. Additional symptoms of Acute Stress Disorder include:
For one-third to one-half of the victims, these symptoms continue beyond the first few months and meet the conditions for the diagnosis of posttraumatic stress disorder. (See also Significant Emotional Event.) In general, rape and sexual assault are among the most common causes of PTSD in women.
"Victim blaming" is holding the victim of a crime to be in whole or in part responsible for the crime. In the context of rape, this concept refers to the Just World Theory and popular attitudes that certain victim behaviours (such as flirting, or wearing sexually-provocative clothing) may encourage rape. In extreme cases, victims are said to have "asked for it", simply by not behaving demurely. In most Western countries, the defense of provocation is not accepted as a mitigation for rape. A global survey of attitudes toward sexual violence by the Global Forum for Health Research shows that victim-blaming concepts are at least partially accepted in many countries. In some countries, victim-blaming is more common, and women who have been raped are sometimes deemed to have behaved improperly. Often, these are countries where there is a significant social divide between the freedoms and status afforded to men and women. Amy M. Buddie & Arthur G. Miller in a review of studies of "rape myths" note that,
Rape victims are blamed more when they resist the attack later in the rape encounter rather than earlier (Kopper, 1996), which seems to suggest the stereotype that these women are engaging in token resistance (Malamuth & Brown, 1994; Muehlenhard & Rogers, 1998) or leading the man on because they have gone along with the sexual experience thus far. Finally, rape victims are blamed more when they are raped by an acquaintance or a date rather than by a stranger (e.g., Bell, Kuriloff, & Lottes, 1994; Bridges, 1991; Bridges & McGr ail, 1989; Check & Malamuth, 1983; Kanekar, Shaherwalla, Franco, Kunju, & Pinto, 1991; L'Armand & Pepitone, 1982; Tetreault & Barnett, 1987), which seems to evoke the stereotype that victims really want to have sex because they know their attacker and perhaps even went out on a date with him. The underlying message of this research seems to be that when certain stereotypical elements of rape are in place, rape victims are prone to being blamed.
However they also note that "individuals may endorse rape myths and at the same time recognize the negative effects of rape."
As sexual violence affects all parts of society, the response to sexual violence is comprehensive. The responses can be categorized as: individual approaches, health care responses, community-based efforts and actions to prevent other forms of sexual violence.
Since the vast majority of rapes are committed by persons known to the victim, the initiation and process of a rape investigation depends much on the victim's willingness and ability to report and describe a rape.
Biological evidence such as semen, blood, vaginal secretions, saliva, vaginal epithelial cells may be identified and genetically typed by a crime lab. The information derived from the analysis can often help determine whether sexual contact occurred, provide information regarding the circumstances of the incident, and be compared to reference samples collected from patients and suspects.
According to United States Department of Justice document Criminal Victimization in the United States, there were overall 191,670 victims of rape or sexual assault reported in 2005. Only 16% of rapes and sexual assaults are reported to the police (Rape in America: A Report to the Nation. 1992). 1 of 6 U.S. women has experienced an attempted or completed rape. More than a quarter of college age women report having experienced a rape or rape attempt since age 14.  The U.S. Department of Justice compiles statistics on crime by race, but only between and among people categorized as black or white. There were 111,490 white and 36,620 black victims of rape or sexual assault reported in 2005. Out of the 111,490 cases involving white victims, 44.5% (49,613) had white offenders and 33.6% (37,461) had black offenders, while the 36,620 black victims had a figure of 100% black offenders, with a 0.0% estimation for any other race based on ten or fewer sample cases. Some types of rape are excluded from official reports altogether, (the FBI's definition for example excludes all rapes except forcible rapes of females), because a significant number of rapes go unreported even when they are included as reportable rapes, and also because a significant number of rapes reported to the police do not advance to prosecution.
U.S. Bureau of Justice Statistics (1999) estimated that 91% of rape victims are female and 9% are male, with 99% of the offenders being male. Denov (2004) states that societal responses to the issue of female perpetrators of sexual assault "point to a widespread denial of women as potential sexual aggressors that could work to obscure the true dimensions of the problem."
According to the National Crime Victimization Survey, the adjusted per-capita victimization rate of rape has declined from about 2.4 per 1000 people (age 12 and above) in 1980 to about 0.4 per 1000 people, a decline of about 85%. But other government surveys, such as the Sexual Victimization of College Women study, critique the NCVS on the basis it includes only those acts perceived as crimes by the victim, and report a higher victimization rate. Researchers have also reported significantly higher rape figures than the NCVS when questions were behaviorally specific. One survey found that "the percentage of women who reported completed rapes using behaviorally specific questions was 11 times higher than reported in the NCVS modeled study".
From 2000-2005, 59% of rapes were not reported to law enforcement. One factor relating to this is misconception that most rapes are committed by strangers. In reality, according to the Bureau of Justice Statistics, 38% of victims were raped by a friend or acquaintance, 28% by "an intimate" and 7% by another relative, and 26% were committed by a stranger to the victim. About four out of ten sexual assaults take place at the victim's own home.
Rape of women by men, by perpetrator
|Steady dating partner||21.6%|
Drug use, especially alcohol, is frequently involved in rape. In 47% of rapes, both the victim and the perpetrator had been drinking. In 17%, only the perpetrator had been. 7% of the time, only the victim had been drinking. Rapes where neither the victim nor the perpetrator had been drinking were 29% of all rapes.
Contrary to widespread belief, rape outdoors is rare. Over two thirds of all rapes occur in someone's home. 30.9% occur in the perpetrators' homes, 26.6% in the victims' homes and 10.1% in homes shared by the victim and perpetrator. 7.2% occur at parties, 7.2% in vehicles, 3.6% outdoors and 2.2% in bars.
According to a news report on BBC One presented in 12 November 2007, there were 85,000 women raped in the UK in the previous year, equating to about 230 cases every day. According to that report one of every 200 women in the UK was raped in 2006. The report also showed that only 800 persons were convicted in rape crimes that same year.
In eastern Congo, the prevalence and intensity of rape and other sexual violence is described as the worst in the world. It is estimated that there are as many as 200,000 surviving rape victims living in the Democratic Republic of the Congo today. War rape in the Democratic Republic of Congo has frequently been described as a "weapon of war" by commentators. Louise Nzigire, a local social worker, states that “this violence was designed to exterminate the population.” Nzigire observes that rape has been a "cheap, simple weapon for all parties in the war, more easily obtainable than bullets or bombs."
It is estimated that a woman born in South Africa has a greater chance of being raped than learning how to read. One in three of the 4,000 women questioned by the Community of Information, Empowerment and Transparency said they had been raped in the past year.
South Africa has some of the highest incidences of child and baby rape in the world. In a related survey conducted among 1,500 schoolchildren in the Soweto township, a quarter of all the boys interviewed said that 'jackrolling', a term for gang rape, was fun. More than 25% of South African men questioned in a survey admitted to raping someone; of those, nearly half said they had raped more than one person, according to a new study conducted by the Medical Research Council (MRC). It is estimated that 500,000 rapes are committed annually in South Africa.
More than 67,000 cases of rape and sexual assaults against children were reported in 2000 in South Africa. Child welfare groups believe that the number of unreported incidents could be up to 10 times that number. A belief common to South Africa holds that sexual intercourse with a virgin will cure a man of HIV or AIDS. South Africa has the highest number of HIV-positive citizens in the world. According to official figures, one in eight South Africans are infected with the virus. Edith Kriel, a social worker who helps child victims in the Eastern Cape, said: “Child abusers are often relatives of their victims - even their fathers and providers.”
According to University of Durban-Westville anthropology lecturer and researcher Suzanne Leclerc-Madlala, the myth that sex with a virgin is a cure for AIDS is not confined to South Africa. “Fellow AIDS researchers in Zambia, Zimbabwe and Nigeria have told me that the myth also exists in these countries and that it is being blamed for the high rate of sexual abuse against young children.”
Most rape research and reporting to date has been limited to male-female forms of rape. Research on male-male and female-male is beginning to be done. However, almost no research has been done on female-female rape, though women can be charged with rape.
The extents of false reporting and false accusations are disputed. A study from the UK found that of the approximately 14,500 cases of rape reported in 2005/2006 9% were classified as false allegations. The journalist Dick Haws discusses cases in which figures on false reporting used by journalists have ranged from 2% to 50% depending on their sources:
"... one explanation for such a wide range in the statistics might simply be that they come from different studies of different populations... But there's also a strong political tilt to the debate. A low number would undercut a belief about rape as being as old as the story of Joseph and Potiphar's wife: that some women, out of shame or vengeance ... claim that their consensual encounters or rebuffed advances were rapes. If the number is high, on the other hand, advocates for women who have been raped worry it may also taint the credibility of the genuine victims of sexual assault."
In ancient history, rape was viewed less as a type of assault on the female, than a serious property crime against the man to whom she belonged, typically the father or husband. The loss of virginity was an especially serious matter. The damage due to loss of virginity was reflected in her reduced prospects in finding a husband and in her bride price. This was especially true in the case of betrothed virgins, as the loss of chastity was perceived as severely depreciating her value to a prospective husband. In such cases, the law would void the betrothal and demand financial compensation from the rapist, payable to the woman's household, whose "goods" were "damaged". Under biblical law, the rapist might be compelled to marry the unmarried woman instead of receiving the civil penalty if her father agreed. This was especially prevalent in laws where the crime of rape did not include, as a necessary element, the violation of the woman's body, thus dividing the crime in the current meaning of rape and a means for a man and woman to force their families to permit marriage. (See Deuteronomy 22:28-29.)
The word rape itself originates from the Latin verb rapere: to seize or take by force. The word originally had no sexual connotation and is still used generically in English. The history of rape, and the alterations of its meaning, is quite complex. In Roman law, rape was classified as a form of crimen vis, "crime of assault." Unlike theft or robbery, rape was termed a "public wrong" iniuria publica as opposed to a "private wrong" iniuria privita. Augustus Caesar enacted reforms for the crime of rape under the assault statute Lex Iulia de vi publica, which bears his family name, Iulia. It was under this statute rather than the adultery statute of Lex Iulia de adulteriis that Rome prosecuted this crime. Emperor Justinian confirmed the continued use of the statute to prosecute rape during the 6th century in the Eastern Roman Empire. By late antiquity, the general term raptus had referred to abduction, elopement, robbery, or rape in its modern meaning. Confusion over the term led ecclesial commentators on the law to differentiate it into raptus seductionis (elopement without parental consent) and raptus violentiae (ravishment). Both of these forms of raptus had a civil penalty and possible excommunication for the family and village receiving the abducted woman, although raptus violentiae also incurred punishments of mutilation or death.
From the classical antiquity of Greece and Rome into the Colonial period, rape along with arson, treason and murder was a capital offense. "Those committing rape were subject to a wide range of capital punishments that were seemingly brutal, frequently bloody, and at times spectacular." In the 12th century, kinsmen of the victim were given the option of executing the punishment themselves. "In England in the early fourteenth century, a victim of rape might be expected to gouge out the eyes and/or sever the offender's testicles herself."
The medieval theologian Thomas Aquinas argued that rape, though sinful, was much less unacceptable than masturbation or coitus interruptus, because it fulfilled the procreative function of sex, while the other acts violated the purpose of sex.
The English common law defined rape as "the carnal knowledge of a woman forcibly and against her will." The common law defined carnal knowledge as the penetration of the female sex organ by the male sex organ (it covered all other acts under the crime of sodomy). The crime of rape was unique in the respect that it focused on the victim's state of mind and actions in addition to that of the defendant. The victim was required to prove a continued state of physical resistance, and consent was conclusively presumed when a man had intercourse with his wife. "One of the most oft-quoted passages in our jurisprudence" on the subject of rape is by Lord Chief Justice Sir Matthew Hale from the 17th century, "rape...is an accusation easily to be made and hard to be proved, and harder to be defended by the party accused, tho never so innocent." Lord Hale is also the origin of the remark, "In a rape case it is the victim, not the defendant, who is on trial." However, as noted by Sir William Blackstone in his Commentaries on the Laws of England, by 1769 the common law had recognized that even a prostitute could suffer rape if she had not consented to the act.
The modern criminal justice system is widely regarded as unfair to sexual assault victims. Both sexist stereotypes and common law combined to make rape a "criminal proceeding on which the victim and her behavior were tried rather than the defendant". Additionally, gender neutral laws have combated the older perception that rape never occurs to men, while other laws have eliminated the term altogether.
Since the 1970s many changes have occurred in the perception of sexual assault due in large part to the feminist movement and its public characterization of rape as a crime of power and control rather than purely of sex. In some countries the women's liberation movement of the 1970s created the first rape crisis centers. One of the first two rape crisis centers, the D.C. Rape Crisis Center, opened in 1972. It was created to promote sensitivity and understanding of rape and its effects on the victim. In 1960 law enforcement cited false reporting rates at 20%. By 1973 the statistics had dropped to 15%. After 1973 the New York City Police Department used female officers to investigate sexual assault cases and the rate dropped to 2% according to the FBI. (DiCanio, 1993).
Male-male rape has historically been shrouded in secrecy due to the stigma men associate with being raped by other men. According to psychologist Dr Sarah Crome fewer than one in ten male-male rapes are reported. As a group, male rape victims reported a lack of services and support, and legal systems are often ill equipped to deal with this type of crime.
Most legal codes on rape do not legislate against women raping men, as rape is generally defined to include the act of penetration on behalf of the rapist. In 2007 the South Africa police investigated instances of women raping young men.
There is more than one meaning of Rape discussed in the 1911 Encyclopedia. We are planning to let all links go to the correct meaning directly, but for now you will have to search it out from the list below by yourself. If you want to change the link that led you here yourself, it would be appreciated.
Rape is having sexual intercourse with a person who does not want to, or cannot consent. Consent is when someone agrees of their own choice without being forced to. Rape is a form of sexual assault. In most countries, rape is a serious crime. A person who rapes someone is a rapist. Rapists may use violence, drugs, or threats to get their way.
A person may be unable to consent (say yes to) to sexual intercourse or other sexual activity. Having sex with a person who cannot consent is rape.
Some adults are unable to consent to sex.
Rape is a medical emergency. People who are raped may be injured or have a sexually transmitted disease (STD). People may not know they are hurt or sick. Doctors can give medicine to treat an STD. HIV, an STD, can be prevented by early treatment. If seen quickly, a doctor can give medication called emergency contraception to prevent pregnancy.
At the hospital police can collect evidence from the victim and his/her clothing. Evidence may help find the rapist, and can help him/her go to jail. Waiting too long makes it hard to collect evidence. Also, taking a shower before telling the police or going to a hospital can wash off some of the DNA evidence.
Victims of rape may feel scared or sad, or even guilty. They may think about the rape a lot, even when they do not want to. They may have nightmares about the rape. Many have post-traumatic stress disorder. Talking to someone, like a counselor, can help. Sometimes doctors can give medicine to decrease fear and sadness. Calling a rape crisis center or hotline can help a victim find help.
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