Laws regarding 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, under threat or manipulation, by impersonation, or with a person who is incapable of giving valid consent.
Definitions of rape vary, but they generally require some degree of sexual penetration without consent. The term "consent" varies by law as well. Minors, for example, are often considered too young to consent to sexual relations with older persons. 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, no longer have a traditional common law offence of rape, which always required that sexual penetration had occurred. Some of these jurisdictions instead have created new statutory offences, such as sexual assault or criminal sexual conduct, which criminalise sexual contact without consent, and without any requirement that sexual intercourse occurred.

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 specifically, or either a woman or a man generally, or engaging in sexual intercourse with a person 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 of a person.
In Prosecutor v. Anto Furundžija, the International Criminal Tribunal for the former Yugoslavia included fellatio in the definition of rape, because : "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. The essence of the whole corpus of international humanitarian law as well as human rights law lies in the protection of the human dignity of every person, whatever his or her gender."

Mens rea

Countries around the world differ in how they deal with the mens rea element in the law regarding rape,, and in how they place the onus of proof with regard to belief of consent.
For example, under the Sexual Offences Act 2003, the belief must be "reasonable" and "Whether a belief is reasonable is to be determined having regard to all the circumstances, including any steps A has taken to ascertain whether B consents."
In some jurisdictions the mens rea is quite complex, such as in New South Wales, where the law reads:
The Explanatory Report of the Istanbul Convention, states at para 189: "The interpretation of the word 'intentionally' is left to domestic law, but the requirement for intentional conduct relates to all the elements of the offence." .

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."
In M. C. v. Bulgaria, 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 :
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 : "Such detentions amount to circumstances that were so coercive as to negate any possibility of consent."
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 : " 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."

Redefinitions and statute

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, and may also include other sexual acts ; 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. There have also been changes in the legal definition of consent/coercion.
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.
the removal of the stipulation that, if after the act of rape the victim and the perpetrator marry each other, the prosecution ends.
Marital rape

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.
Marital rape is included in the 1993 Declaration on the Elimination of Violence Against Women as a form of violence against women, which reads:
It is also included in the Council of Europe Recommendation Rec5 of the Committee of Ministers to member states on the protection of women against violence, which reads:
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."
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, are bound by its provisions to ensure that non-consensual sexual acts committed against a spouse or partner are illegal. The convention came into force in August 2014.

Marry-your-rapist laws

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, the practice has been supported by the rape laws in many legal systems throughout history. In the late 20th and early 21st century, the remaining laws of this type were increasingly challenged and repealed in a series of countries.

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 ; sexual intercourse was not necessary. Furthermore, in many legal systems 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 : "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

Punishment of assailants

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. 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 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.
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.