1.2.5 Rape Condensed entry Rape consists of (a) the penetration however slight, of any part of the body of the victim or of the perpetrator with a sexual organ, or of the anal or genital opening of the victim with any object or any part of the body (b) lack of consent. Consent must be given voluntarily, as a result of free will, assessed in the context of the surrounding circumstances. States have a duty to provide effective protection against rape. This duty includes the penalisation and effective prosecution of any non-consensual sexual act, including in the absence of physical resistance by the victim. This applies also to marital rape.
Comments:
I think the definition of consent should be enlarge because it does not cover the rape in the work place. A secretary can find it difficult to resist a sexual advance coming from his or her boss. In this situation, it would be difficult to proof that the consent was free.
Comprehensive entry: The international definition of rape is broader than legislation in many national jurisdictions and consists of the following two elements:
Penetration however slight, of any part of the body of the victim or of the perpetrator with a sexual organ, or of the anal or genital opening of the victim with any object or any part of the body.[1]
According to article 7 of the ICCPR and other international and regional human rights instruments, ‘[n]o one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.’[3] Rape may be classified as torture in particular if it is carried out by or at the instigation of or with the consent or acquiescence of public officials.[4] (See *torture*). Rape by its nature gives rise to severe pain or suffering, whether physical or mental, and would thus under all circumstances constitute cruel, inhuman or degrading treatment or punishment.[5] (See *cruel, inhuman or degrading treatment or punishment*). Women and girl children are in the clear majority of the victims of rape. There are thus a number of international and regional human rights instruments relating to violence against women which make specific reference to rape.[6] With regard to penetration the ICTR held in Akayesu:[7] while rape has been historically defined in national jurisdictions as non-consensual sexual intercourse, variations on the form of rape may include acts which involve the insertion of objects and/or the use of bodily orifices not considered to be intrinsically sexual. An act such as that described by Witness KK in her testimony - the Interahamwes thrusting a piece of wood into the sexual organs of a woman as she lay dying - constitutes rape Other acts that have been held to amount to rape include penetration of the mouth,[8] and vaginal examination.[9] Consent must be given voluntarily, as a result of free will, assessed in the context of the surrounding circumstances.[10] Force or threat of force provides clear evidence of non-consent, but force is not an element per se of rape.[11] In MC v Bulgaria the ECtHR held:[12] [A]ny 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 … 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. There is not consent if the victim ‘has been subjected to or threatened with or has reason to fear violence, duress, detention or psychological oppression’.[13]Consent is clearly not present with regard to children under an objective and reasonable age of consent and those who for reasons of mental or physical disability are unable to give consent.[14] The same applies to those drunk, drugged or asleep.[15] States have a duty to provide effective protection against rape.[16] This duty includes the penalisation and effective prosecution of any non-consensual sexual act, including in the absence of physical resistance by the victim.[17] This applies also to marital rape.[18]
[1] ICC Elements of Crimes, ICC-ASP/1/3 (part II-B) (2002) 8. See also Prosecutor v KuneracICTY-96-23-T (ICTY 2001) para 460, Miguel Castro Castro v Peru (IACtHR) para 310, Kunerac paras 436- CoE Convention on preventing and combating violence against women and domestic violence (CoE Convention) art 36. [2]Prosecutor v Kunera para 460; MC v Bulgaria application 39272/98 (ECtHR 2003) para 166, CoE Convention art 36. The ICC Elements of Crimes refers to coercion or force rather than lack of consent. [3] CAT art 2, 16; ACHPR art 5; ACHR art 5(2); ECHR art 3. [4]VL v Switzerland communication 262/2005 (CAT 2007) para 8.10; CT & KM v Sweden communication 279/2005 (CAT 2007), para 7.5; Aydin v Turkey (ECtHR 1997) para 86; Marti de Mejia v Peru, Case 10.970, Report 5/96 (IAComHR 1996), Prosecutor v AkayesuICTR-96-4-T (ICTR 1998) para 687. [5]VL v Switzerland communication 262/2005 (CAT 2007) para 8.10
(6) UN Declaration on the Elimination of Violence against Women art 2; Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women (Convention of Belem do Para) art 2; CoE Convention art 36. The Protocol to the African Charter on the Rights of Women in Africa only make reference to rape in relation to protection of women in armed conflict (art 11) and abortion (art 14(2)(c) [7]Prosecutory v Akayesupara 686.
[8]Prosecutor v Furundzija IT-95-17/1-T (ICTY 1998) para 183. [9]Miguel Castro Castro v Peru (IACtHR 2006) paras 309, 312. [10]Prosecutor v Kunarac para 460. [11]Prosecutor v Kunarac para 129-130. [12]MC v Bulgaria para 166. [13] ICTY Rules of Procedure and Evidence rule 96; Prosecutor v Kunarac para 464. [14] Cf ICC Elements of Crime fn 16. [15]WHO Report on violence and health (2002) 149. [16]X & Y v Netherlands (ECtHR) para 23. [17]MC v Bulgaria paras 153, 166; Aydin v Turkey para 105. [18] UN Declaration on the Elimination of Violence against Women art 2. See also Nepal Supreme Court Writ No. 55 of the year 2058 BS (2001-2002); CR v UK application 20190/92 (ECtHR 1995) para 42.
Condensed entry
Rape consists of (a) the penetration however slight, of any part of the body of the victim or of the perpetrator with a sexual organ, or of the anal or genital opening of the victim with any object or any part of the body (b) lack of consent.
Consent must be given voluntarily, as a result of free will, assessed in the context of the surrounding circumstances. States have a duty to provide effective protection against rape. This duty includes the penalisation and effective prosecution of any non-consensual sexual act, including in the absence of physical resistance by the victim. This applies also to marital rape.
Comments:
I think the definition of consent should be enlarge because it does not cover the rape in the work place. A secretary can find it difficult to resist a sexual advance coming from his or her boss. In this situation, it would be difficult to proof that the consent was free.
Comprehensive entry:
The international definition of rape is broader than legislation in many national jurisdictions and consists of the following two elements:
- Penetration however slight, of any part of the body of the victim or of the perpetrator with a sexual organ, or of the anal or genital opening of the victim with any object or any part of the body.[1]
- Lack of consent.[2]
According to article 7 of the ICCPR and other international and regional human rights instruments, ‘[n]o one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.’[3] Rape may be classified as torture in particular if it is carried out by or at the instigation of or with the consent or acquiescence of public officials.[4] (See *torture*). Rape by its nature gives rise to severe pain or suffering, whether physical or mental, and would thus under all circumstances constitute cruel, inhuman or degrading treatment or punishment.[5] (See *cruel, inhuman or degrading treatment or punishment*). Women and girl children are in the clear majority of the victims of rape. There are thus a number of international and regional human rights instruments relating to violence against women which make specific reference to rape.[6]With regard to penetration the ICTR held in Akayesu:[7]
while rape has been historically defined in national jurisdictions as non-consensual sexual intercourse, variations on the form of rape may include acts which involve the insertion of objects and/or the use of bodily orifices not considered to be intrinsically sexual. An act such as that described by Witness KK in her testimony - the Interahamwes thrusting a piece of wood into the sexual organs of a woman as she lay dying - constitutes rape
Other acts that have been held to amount to rape include penetration of the mouth,[8] and vaginal examination.[9]
Consent must be given voluntarily, as a result of free will, assessed in the context of the surrounding circumstances.[10] Force or threat of force provides clear evidence of non-consent, but force is not an element per se of rape.[11] In MC v Bulgaria the ECtHR held:[12]
[A]ny 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 … 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.
There is not consent if the victim ‘has been subjected to or threatened with or has reason to fear violence, duress, detention or psychological oppression’.[13] Consent is clearly not present with regard to children under an objective and reasonable age of consent and those who for reasons of mental or physical disability are unable to give consent.[14] The same applies to those drunk, drugged or asleep.[15]
States have a duty to provide effective protection against rape.[16] This duty includes the penalisation and effective prosecution of any non-consensual sexual act, including in the absence of physical resistance by the victim.[17] This applies also to marital rape.[18]
[1] ICC Elements of Crimes, ICC-ASP/1/3 (part II-B) (2002) 8. See also Prosecutor v KuneracICTY-96-23-T (ICTY 2001) para 460, Miguel Castro Castro v Peru (IACtHR) para 310, Kunerac paras 436- CoE Convention on preventing and combating violence against women and domestic violence (CoE Convention) art 36.
[2]Prosecutor v Kunera para 460; MC v Bulgaria application 39272/98 (ECtHR 2003) para 166, CoE Convention art 36. The ICC Elements of Crimes refers to coercion or force rather than lack of consent.
[3] CAT art 2, 16; ACHPR art 5; ACHR art 5(2); ECHR art 3.
[4] VL v Switzerland communication 262/2005 (CAT 2007) para 8.10; CT & KM v Sweden communication 279/2005 (CAT 2007), para 7.5; Aydin v Turkey (ECtHR 1997) para 86; Marti de Mejia v Peru, Case 10.970, Report 5/96 (IAComHR 1996), Prosecutor v AkayesuICTR-96-4-T (ICTR 1998) para 687.
[5] VL v Switzerland communication 262/2005 (CAT 2007) para 8.10
(6) UN Declaration on the Elimination of Violence against Women art 2; Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women (Convention of Belem do Para) art 2; CoE Convention art 36. The Protocol to the African Charter on the Rights of Women in Africa only make reference to rape in relation to protection of women in armed conflict (art 11) and abortion (art 14(2)(c)
[7] Prosecutory v Akayesupara 686.
[8] Prosecutor v Furundzija IT-95-17/1-T (ICTY 1998) para 183.
[9]Miguel Castro Castro v Peru (IACtHR 2006) paras 309, 312.
[10] Prosecutor v Kunarac para 460.
[11] Prosecutor v Kunarac para 129-130.
[12] MC v Bulgaria para 166.
[13] ICTY Rules of Procedure and Evidence rule 96; Prosecutor v Kunarac para 464.
[14] Cf ICC Elements of Crime fn 16.
[15] WHO Report on violence and health (2002) 149.
[16] X & Y v Netherlands (ECtHR) para 23.
[17] MC v Bulgaria paras 153, 166; Aydin v Turkey para 105.
[18] UN Declaration on the Elimination of Violence against Women art 2. See also Nepal Supreme Court Writ No. 55 of the year 2058 BS (2001-2002); CR v UK application 20190/92 (ECtHR 1995) para 42.