Rape laws - A comparative look at different countries laws

Adv Bhuneshwari Devi

Rape is a kind 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 influence, 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.

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. 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 favour of other terms such as 'sexual assault', 'sexual intercourse without consent', 'criminal sexual conduct' etc.

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 and the criminalization of rape between spouses. 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.In countries like BhutanPenal 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. Marital rape is illegal in Bhutan. In Canadathe 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 as "the voluntary agreement of the complainant to engage in the sexual activity in question".

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, then he/she is not legally consenting.

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.

Writer is a Human Right Activist and founder of Human Rights Foundation, Babu Lane, Port Blair,ANI