Laws regarding rape

Main article: Rape

Rape is a type of sexual assault initiated by one or more persons against another person without that person's consent. The act may be carried out by physical force, or where the person is under threat or manipulation, or with a person who is incapable of valid consent. It is the name of a statutory crime in jurisdictions such as England and Wales, Northern Ireland, Scotland, California, and New York, and is a legal term of art used in the definition of the offence of sexual violation in New Zealand.

Definitions of rape vary, and though rape is usually dependent upon whether or not consent was present during the act, the term "consent" varies as well. Minors, for example, are often considered too young to consent to sexual relations with older persons (see statutory rape and age of 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.

Many jurisdictions, such as Canada, and several US and Australian states, have abandoned the term 'rape' in favor of other terms such as 'sexual assault', 'sexual intercourse without consent', 'criminal sexual conduct' etc.

Terminology and definitions

Classification

Depending on the jurisdiction, rape may be characterized as a sexual offence or an offence against the person. Rape may also be characterized as a form of aggravated assault or battery, or both, indecent assault or sexual assault or battery, or both.

Actus reus

To sustain a conviction, rape might require proof that the defendant had sexual penetration with another person. Depending on the jurisdiction, the actus reus of rape may consist of "having carnal knowledge of" a woman, or "having sexual intercourse with" a woman (including a girl) specifically, or either a woman or a man (including a girl or a boy) generally, or engaging in sexual intercourse with a person (which term includes an intersex person who might arguably be neither a woman nor a man) or having "sexual connection" with a person affected by penile penetration of that person's genitalia, or penile penetration of the vagina, anus or mouth (these terms construed as including surgically constructed organs) of a person.

Mens rea

Countries around the world differ in how they deal with the 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), and in how they place the onus of proof with regard to belief of consent.

Attendant circumstances

Rape has been defined so as to require proof that the sexual act in question was done without the victim's consent, or so as to require proof that it was done either without their consent or, alternatively, against their will.

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".

Redefinitions and statute

Further information: History of rape and Marital rape

General

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 male rape. There have also been changes in the legal definition of consent/coercion.

Relation to marriage

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 removal of the stipulation that, if after the act of rape the victim and the perpetrator get married to each other, the prosecution ends
• the criminalization of rape between spouses ('marital rape')

Traditionally, the marriage of the perpetrator and the victim after the rape was often seen as an appropriate 'resolution' of the situation. This was supported by the rape laws in many legal systems. Such laws were ended in Mexico in 1991, Colombia in 1997, Peru in 1999, Egypt in 1999, Ethiopia in 2005, Brazil in 2005, Uruguay in 2005, Guatemala in 2006, Costa Rica in 2007, and Morocco in 2014.

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.

As a crime of abduction

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. 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. 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.

Common law

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 following cession (see British Empire). 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 penis) with him. Common law rape required the utmost physical resistance by the victim, as well as substantial force by the defendant. The common law crime of rape was collectively adopted by the American colonies in the seventeenth and eighteenth centuries. Until the late twentieth century, spousal rape was not considered a true rape case because the woman was traditionally viewed as the property of her husband. Hence, both spouses were deemed to have consented to a lifelong sexual relationship through the wedding vows. However, with changes to the marital rape exemption, as well as with the significant development of women's rights, the belief of a marital right to sexual intercourse has become less widely held.

Rape was also an offense at common law in Scotland. This offense was not derived from the English offense as Scotland retained its own system of criminal law under the terms of the Acts of Union 1707.

International guidelines and recommendations

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:

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.”

Punishment

See also: Prison rape

Punishment of assailants

Punishment for rape in most countries today is imprisonment. Castration is sometimes a punishment for rape and, controversially, some U.S. jurisdictions allow shorter sentences for sex criminals who agree to voluntary chemical castration.

In 1977, in Coker v. Georgia the Supreme Court of the United States held that the Eighth Amendment to the United States Constitution forbade the death penalty for the crime of rape of an adult woman; and in 2008 in Kennedy v. Louisiana it ruled the same in regard to rape of a child.

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 11.8 years, while the actual time served was 5.4 years. This follows the typical pattern for violent crimes in the US, where those convicted typically serve no more than half of their sentence.

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. In the Republic of Ireland the average sentence given for rape is 5 – 7 years.

Punishment of victims

Main articles: Victim blaming, Honor killing, and Slut-shaming

While the practice is condemned as barbaric by many present-day societies, 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.

In the Shakespeare drama Titus Andronicus, Titus Andronicus kills his raped, maimed daughter in what he believes to be a mercy killing.

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. The iconic Roman instance is that of Lucretia. Likewise, 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).

Bhutan

Chapter 14 (Sexual Offenses) of the 2004 Penal Code of Bhutan outlaws rape and other sexual offenses. Under the criminal code, there are several categories of rape, which are punished differently, depending on factors such as the age of the victim, the relationship between the victim and the perpetrator, the number of participants (gang rape), whether the victim was pregnant, whether injury occurred. Marital rape is also recognized as an offense under the 2004 laws, being classified as a petty misdemeanour. The most serious form of rape is Gang rape of a child below twelve years of age, classified as a felony of the first degree.

Rape

177. A defendant shall be guilty of the offence of rape, if the defendant has sexual intercourse with another person:

(a) Without the person’s consent or with consent, when consent is obtained by putting the person or a third person in fear of death or of grievous hurt;

(b) Compels the other person to submit to sexual intercourse by force, or by threat of

imminent death, bodily injury or serious bodily injury or the commission of a

felony to that person or a third person;

(c) Substantially impairs the other persons ability to appraise or control the conduct by administering drugs, intoxicants, or other substances without consent for the

purpose of preventing the person’s resistance to the sexual intercourse, or

(d) Renders the other person unconscious for the purpose of committing sexual

intercourse

The most serious sexual offense is gang rape of a child under 12.

Gang rape of a child below twelve years of age

191. A defendant shall be guilty of the offence of gang rape of a child below the age of twelve years, when two or more persons engage in a sexual intercourse with a child below the age of twelve years.

Grading of Gang rape of a child below twelve years of age

192. The offence of gang rape of a child below twelve years of age shall be a felony of the first degree

Marital rape is illegal:

Marital rape

199. A defendant shall be guilty of marital rape, if the defendant engages in sexual intercourse with one's own spouse without consent or against the will of the other spouse.

Grading of Marital rape

200. The offence of marital rape shall be a petty misdemeanour.

Canada

The word rape is not used in the Canadian Criminal Code. Instead the law criminalizes "sexual assault". Sexual assault is defined as sexual contact with another person without that other person's consent. Consent is defined in section 273.1(1) as "the voluntary agreement of the complainant to engage in the sexual activity in question". For more details, see Sexual assault#Canada.

France

fr

Any act of sexual penetration, whatever its nature, committed against another person by violence, constraint, threat or surprise, is rape. Rape is punished by a maximum of fifteen years' criminal imprisonment.

Rape is punished by a maximum of twenty years' criminal imprisonment in certain aggravating factors (including victim under age of 15).

Rape is punished by a maximum of thirty years' criminal imprisonment where it caused the death of the victim.

Rape is punished by a maximum of imprisonment for life when it is preceded, accompanied or followed by torture or acts of barbarity.

Greece

Penal Code, Art. 336 par. 1 creates the offence of rape. It reads:

1. Whoever with physical violence or with threat of grave and direct danger forces another to intercourse or to tolerance or action of an indecent act, is punished with incarceration.

In Greece, marital rape was made illegal in 2006.

Guatemala

The 2009 Law against Sexual Violence, Exploitation and Trafficking in Persons defines rape as follows:

Rape

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. Also, the offense is committed when the victim is a person younger than fourteen years, or a person with volitional or cognitive impairment, even in the absence of physical or psychological violence. The penalty shall be imposed without prejudice to the penalties that may apply for the commission of other offenses.

Israel

The definition of the criminal offense of rape in Israel is as follows:

Rape 345.(a)

If a person had intercourse with a woman

(1)without her freely given consent;

(2)with the woman's consent, which was obtained by deceit in respect of the identity of the person or the nature of the act;

(3)when the woman is a minor below age 14, even with her consent;

(4)by exploiting the woman's state of unconsciousness or other condition that prevents her from giving her free consent;

(5)by exploiting the fact that she is mentally ill or deficient, if –because of her illness or mental deficiency–her consent to intercourse did not constitute free consent;

then he committed rape and is liable to sixteen years imprisonment.

New Zealand

Article 128 is entitled Sexual violation defined. Article 128 (1) states that Sexual violation is the act of a person who rapes another person or has unlawful sexual connection with another person. Article 128 (2) defines rape as follows:

Person A rapes person B if person A has sexual connection with person B, effected by the penetration of person B's genitalia by person A's penis,—

(a) without person B's consent to the connection; and

(b) without believing on reasonable grounds that person B consents to the connection.

Article 128 (3) outlaws "unlawful sexual connection" (which refers to sexual acts other than those described in 128 (2) – i.e. without the penetration of genitalia by the penis – committed under the same circumstances of 128 (2).

Article 128 (4) makes it clear that spousal rape is illegal: "One person may be convicted of the sexual violation of another person at a time when they were married to each other."

Consent

The mere fact that a person allows sexual connection to be performed on them, does not automatically mean that they are legally consenting. If that person allows sexual connection due to coercion (e.g., under force, threats or fear of force; when he/she is asleep or very intoxicated; 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.

128A Allowing sexual activity does not amount to consent in some circumstances

(1) A person does not consent to sexual activity just because he or she does not protest or offer physical resistance to the activity.

(2) A person does not consent to sexual activity if he or she allows the activity because of—

(a) force applied to him or her or some other person; or

(b) the threat (express or implied) of the application of force to him or her or some other person; or

(c) the fear of the application of force to him or her or some other person.

(3) A person does not consent to sexual activity if the activity occurs while he or she is asleep or unconscious.

(4) A person does not consent to sexual activity if the activity occurs while he or she is so affected by alcohol or some other drug that he or she cannot consent or refuse to consent to the activity.

(5) A person does not consent to sexual activity if the activity occurs while he or she is affected by an intellectual, mental, or physical condition or impairment of such a nature and degree that he or she cannot consent or refuse to consent to the activity.

(6) One person does not consent to sexual activity with another person if he or she allows the sexual activity because he or she is mistaken about who the other person is.

(7) A person does not consent to an act of sexual activity if he or she allows the act because he or she is mistaken about its nature and quality.

(8) This section does not limit the circumstances in which a person does not consent to sexual activity.

(9) For the purposes of this section,—

allows includes acquiesces in, submits to, participates in, and undertakes

sexual activity, in relation to a person, means—

(a) sexual connection with the person; or

(b) the doing on the person of an indecent act that, without the person's consent, would be an indecent assault of the person.

Attempted sexual violation and assault with intent to commit sexual violation are also punished (Article 129).

Article 129A is entitled Sexual conduct with consent induced by certain threats and makes it illegal for a person to have sexual connection with another person or to do an indecent act on another person when the accused knows that the other person has been induced to consent to the connection/act by threat. However a person is guilty of this crime "if (and only if) he or she knows that the other person has been induced to consent" to the sexual connection/indecent act "by an express or implied threat". Subsection (5), (a), (b), (c) of this article defines "threat" for the purpose of this article.

Article 135 outlaws Indecent assault. Article 138 outlaws Sexual exploitation of person with significant impairment.

Norway

In Norway, rape is defined under the Norwegian Penal Code § 192 as either:

• 1. engaging in sexual activity by means of violence or threatening behaviour,
• 2. engaging in sexual activity with somebody who is unconscious or for any other reason incapable of resisting the act, or
• 3. by means of violence or threatening behaviour compelling any person to engage in sexual activity with another person, or to carry out similar actions with him- or herself.

When any of these circumstances occur, a person guilty of rape is punishable with up to 10 years imprisonment. However, if a person is guilty of rape through gross negligence he or she is liable to imprisonment for a period not exceeding five years.

If the activity in question was sexual intercourse or the offender has rendered a person unconscious or unable to resist the sexual activity, the penalty imposed shall be no less than three years imprisonment.

Further, the same section defines aggravated rape as a rape committed

• a. by multiple persons in cooperation (gang rape)
• b. in a particularly painful or offensive manner
• c. by a person previously convicted of rape under § 192 or of sexual activity with a child under the age of 14 (as per § 195 of the penal code)
• d. in such a way that the victim either dies or receives grievous bodily harm.

The section recognizes sexually transmitted diseases (defined in the Infection Protection Act) as grievous bodily harm.

Philippines

Article 266-A of the Revised Penal Code (Title Eight of Act No. 3815) provides that:

Rape: When And How Committed. – Rape is committed:

1) By a man who shall have carnal knowledge of a woman under any of the following circumstances:

a) Through force, threat, or intimidation;

b) When the offended party is deprived of reason or otherwise unconscious;

c) By means of fraudulent machination or grave abuse of authority; and

d) When the offended party is under twelve (12) years of age or is demented, even though none of the circumstances mentioned above be present.

Chapter 3 of this Code, which relates to rape, was inserted by the Anti-Rape Law of 1997. By section 2 of that Act, the crime of rape is classified as a crime against persons under that Code.

Russia

According to the Article 131 of the Criminal Code of Russia, rape is defined as heterosexual vaginal intercourse using violence or threat of violence or if the victim is in a helpless state. The other forms of a violent sexual intercourse (male-male, female-male, female-female and non-vaginal male-female) are called "coercive sexual actions" and are punishable by the Article 132. These two crimes, however, are punishable identically. Besides, such crimes as sexual relations with a person under the age of consent (16 years as of 2013, article 134) and depraved actions (article 135), if committed against a person under 12 years since 2012 are considered rape or coercive sexual actions (depending on sex of the offender and the victim and the type of intercourse) and punished according to the articles 131 or 132, because such victim is deemed to be in a helpless state due to his/her age. However, the Article 134 punishes sexual activity between same-sex pairings harsher than sexual activity between opposite-sex pairings when one of the persons is under 16 years old.

Rape or coercive sexual actions without any aggravating circumstances are punishable with 3 to 6 years of imprisonment. If the crime:

• was committed repeatedly (against 1 or more than 1 victim)
• was committed by a group of criminals
• was committed with a threat of murder or grievous harm to the health
• was committed with particular cruelty (e.g. the criminal used violence that caused severe physical pain or the crime was committed in presence of relatives of the victim)
• caused an STD infection

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).

If the crime

• Was committed against a person between 14 and 18 years
• Caused the grievous harm to the health, HIV infection or other grievous consequences (e.g. suicide of the victim)

then it is punishable with 8 to 15 years of imprisonment with subsequent mandatory restraint of liberty for up to 2 years and possible ban on certain occupations or employment positions for up to 20 years.

If the crime

• Caused the death of the victim by inadvertency
• Was committed against a person under 14 years

then it is punishable with 12 to 20 years of imprisonment with subsequent mandatory restraint of liberty for up to 2 years and possible ban on certain occupations or employment positions for up to 20 years.

South Africa

In South Africa, rape is defined by the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007 (Act No. 32 of 2007). This act has repealed the common law offence of rape and replaced it with a new expanded statutory offence of rape, applicable to all forms of sexual penetration without consent, irrespective of gender. Rape is defined in section 3 of the act as follows:

Any person ("A") who unlawfully and intentionally commits an act of sexual penetration with a complainant ("B"), without the consent of B, is guilty of the offence of rape.

and "sexual penetration" is defined as:

any act which causes penetration to any extent whatsoever by—

(a) the genital organs of one person into or beyond the genital organs, anus, or mouth of another person;

(b) any other part of the body of one person or, any object, including any part of the body of an animal, into or beyond the genital organs or anus of another person; or

(c) the genital organs of an animal, into or beyond the mouth of another person[.]

The law also clarifies that marital rape is illegal; section 56 of the act provides that:

Whenever an accused person is charged with an offence under section 3, 4, 5, 6 or 7 it is not a valid defence for that accused person to contend that a marital or other relationship exists or existed between him or her and the complainant.

Switzerland

Rape is defined as follows:

Art. 190

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 doesn't complain).

United Kingdom

England and Wales

Main article: Rape in English law

Rape is a statutory offence. It is created by section 1 of the Sexual Offences Act 2003.

Definition of rape

Rape is defined as follows:

Rape

(1) A person (A) commits an offence if—

(a) he intentionally penetrates the vagina, anus or mouth of another person (B) with his penis,

(b) B does not consent to the penetration, and

(c) A does not reasonably believe that B consents.

Northern Ireland

See also: Sexual offences in the United Kingdom § Northern Ireland

Rape is a statutory offence. It is created by article 5 of the Sexual Offences (Northern Ireland) Order 2008 (S.I. 1769/2008 (N.I. 2)). The common law offence of rape was abolished by article 5(6) of that Order.

Definition of rape

Rape is defined as follows:

Rape

(1) A person (A) commits an offence if—

(a) he intentionally penetrates the vagina, anus or mouth of another person (B) with his penis,

(b) B does not consent to the penetration, and

(c) A does not reasonably believe that B consents.

Interpretation

Any reference to rape in a statutory provision must be construed in accordance with article 5(1) of the said Order.

Rape of a child under 13

This is a statutory offence created by article 12 of the said Order.

Civil liability

Loss of service

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.

Scotland

See also: Sexual offences in the United Kingdom § Scotland

Rape is a statutory offence. It is created by section 1 of the Sexual Offences (Scotland) Act 2009.

Definition of rape

Rape is defined as follows:

Rape

(1) If a person (“A”), with A's penis—

(a) without another person (“B”) consenting, and

(b) without any reasonable belief that B consents,

penetrates to any extent, either intending to do so or reckless as to whether there is penetration, the vagina, anus or mouth of B then A commits an offence, to be known as the offence of rape.

Rape of a young child

This offence is created by section 18 of the Sexual Offences (Scotland) Act 2009.

History

Prior to Sexual Offences (Scotland) Act 2009, rape in Scots Law differed from the definition of rape in other legal systems. 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". Under Scots law, rape could only be carried out by a male who penetrated a female's vagina. If a man's anus was penetrated by another man's penis, this was called sodomy and was tried under indecent assault, a form of aggravated assault. Likewise, if a male penetrated 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 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). 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", had opened up the law to decide whether a voluntarily drunk or intoxicated woman can consent to sexual intercourse. This was clarified under the new laws of 2009 which state that sexual intercourse is non-consensual, and therefore considered rape, if it occurs :(...) where the conduct occurs at a time when B is incapable because of the effect of alcohol or any other substance of consenting to it.

Penetration is sufficient for a sexual intercourse to be deemed rape: there needs not to be any excretion of semen and the female's hymen does not have to be ruptured.

In Scotland, rape continued to be a gender-specific crime until the Sexual Offences (Scotland) Act 2009. This Act came into force on 1 December 2010. The Act expanded the definition of rape to include male rape.

United States

See also: Rape in the United States § Criminal Punishment

State laws

There is no national rape law in the United States, due to the United States v. Morrison ruling that parts of the Violence Against Women Act of 1994 were unconstitutional. 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. State laws vary considerably, and in most states the term "rape" is no longer used, and the offense has been replaced by crimes such as "sexual assault", "criminal sexual conduct", "sexual abuse", "sexual battery" etc. The US laws on sexual violence are complex, with states having numerous sex offenses, dealing with different situations. The laws on sex crimes have been changed and modernized significantly during the last decades and they continue to change.

Uniform Code of Military Justice

Uniform Code of Military Justice [USC Title 10, Subtitle A, Chapter 47X, Section 920, Article 120] defines rape as:

(a) Rape.— Any person subject to this chapter who commits a sexual act upon another person by:

(1) using unlawful force against that other person;

(2) using force causing or likely to cause death or grievous bodily harm to any person;

(3) threatening or placing that other person in fear that any person will be subjected to death, grievous bodily harm, or kidnapping;

(4) first rendering that other person unconscious; or

(5) administering to that other person by force or threat of force, or without the knowledge or consent of that person, a drug, intoxicant, or other similar substance and thereby substantially impairing the ability of that other person to appraise or control conduct;

is guilty of rape and shall be punished as a court-martial may direct.

Marital rape is banned; the law states: "Marriage is not a defense for any conduct in issue in any prosecution under this section."

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.

A recent 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.

The 2006 report of the National Violence Against Women survey was based on the much larger sample size of 8,000 men and 8,000 women. It estimated that "17.7 million women and 2.8 million men in the United States were forcibly raped at some time in their lives, with 302,091 women and 92,748 men forcibly raped in the year pre­ceding the survey." The report defines "rape" to include completed and attempted rapes. However, the vast majority of rapes were completed: "Among all respondents, 14.8 percent of the women and 2.1 percent of the men said they were victims of a completed rape at some time in their life, whereas 2.8 percent of the women and 0.9 percent of the men said they were victims of an attempted rape only."

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.

Rape statistics

Main article: Rape statistics

Rape crisis statistics can be found from the FBI and the Bureau of Justice as well as the CDC and RAINN (which uses the other resources as its source).