Criminal Law on Sexual Assault

 

last updated December 2014

In partnership with UN Women, The Advocates for Human Rights created the following sections for UN Women’s Virtual Knowledge Centre to End Violence against Women and Girls. This section, along with sections addressing other forms of violence against women and girls, may be found under Legislation at www.endvawnow.org.

Definition of sexual assault and other elements

Definition

The definition of sexual assault should state that:

·         It is an act of physical or sexual violence against a person.

·         It occurred without the consent of the person. See section on Consent.

·         The victims and perpetrators should not be gender-specific. (See Model Strategies, p. 18; and the Combating of Rape Act, No 8, (2000) of Namibia 2(1).)

·         It is a violation of a person’s bodily integrity and sexual autonomy.

For example, the Criminal Code (1974) of Papua New Guinea states that:

1) A person who, without a person’s consent –

(a) touches, with any part of his body, the sexual parts of that other person; o
(b) compels another person to touch, with any part of this body, the sexual parts of the accused person’s own body, is guilty of a crime of sexual assault.
Sec. 349

·         It is not a violation of morals or decency, or a crime against the family. (See: UN Handbook 3.4.3.1 and Council of Europe Recommendation Rec(2002)5, #34)

·         Proof of force is not required. See Element of force, below.

·         Proof of penetration is not required.

For example, the Penal Code (2004) of Turkey has two categories of offences against sexual integrity; one that does not involve penetration and one that does:

"Offences against Sexual Integrity; Sexual assault

ARTICLE 102– (1) The perpetrator who violates the physical integrity of another person by means of sexual conduct shall be imprisoned for a term of two to seven years upon the complaint of the victim.

(2) Where the act is committed by means of inserting an organ or a similar object to the body, the perpetrator shall be imprisoned for a term of seven to twelve years.”

CASE STUDY

Prosecutor v. Akayesu (1998) broadens definition of sexual violence.

In Prosecutor v. Akayesu (1998), the International Criminal Tribunal for Rwanda (ICTR) convicted a Rwandan official, on the basis of his actions and failure to act in his official capacity of mass rape, forced public nudity, and sexual mutilation of Tutsi women.

The ICTR broadened the definition of rape beyond that found in the national laws, and offered this comprehensive definition of sexual violence: “…any act of a sexual nature which is committed on a person under circumstances which are coercive. Sexual violence is not limited to physical invasion of the human body and may include acts which do not involve penetration or even physical contact.” Para. 688

Element of force

Legislation on sexual assault should not include a requirement of force or violence. A separate provision should address rape with force. See Aggravating circumstances below.

Mitigating factors

Legislation should clarify that it is no defense that the perpetrator believed that the survivor was not a minor; it is no defense that an underage person consented; and it is no defense that the perpetrator was intoxicated. (See: Model Strategies 7(e), p. 34.)

False declarations of sexual assault 

Legislation should not include a provision criminalizing the false declaration of a rape or sexual assault. Such provisions provide strong disincentives for victims to report the crime. In addition, some states may then accuse the victim of extra-marital sexual conduct. False allegations are commonly dealt with in other areas of a state’s legislation. (See: Gender-Based Violence Laws in Sub-Saharan Africa, p. 43)

Capacity to commit sexual assault 

Legislation should not include a provision which states that a person is considered by reason of age as being physically incapable of committing a sexual assault. (See: the Criminal Law (Rape) (Amendment) Act of Ireland (1990), Section 6.)

Adultery

Legislation should require the repeal of any criminal offence related to adultery. In some countries, a woman who is unable to prove a case of rape may be charged with adultery. Adultery laws are often implemented only against women. (See: Good practices in legislation on “harmful practices” against women, (2010), 3.3.3.3)

“Payback” rape or sexual assault

Legislation should provide that the rape or sexual assault of individuals to punish the individual’s family or clan is an aggravated form of sexual assault which should be punished in accordance with country laws on aggravated rape or sexual assault. Legislation should require that exemption from punishment or reductions in sentence for "payback" sexual assaults are prohibited. (Good practices in legislation on “harmful practices” against women, (2010), 3.3.10.2.)

Virginity tests

Legislation should prohibit virginity tests and call for prosecution of perpetrators under sexual assault provisions. Virginity testing by should be prosecuted and punished in accordance with country laws on aggravated sexual assault.

Compelled sexual assault or rape

Legislation should criminalize the act of compelling a third party to commit a sexual assault or rape and the act of compelling a third party to witness a sexual assault or rape. Legislation should criminalize the act of compelled self-sexual assault. (See: the Criminal Law (Sexual Offences and Related Matters) Amendment Act (No. 32) (2007) of South Africa, Chapter 2.)

Attempted sexual assault

Legislation should provide that the punishment for an attempted sexual assault may be the same as that imposed for the crime itself. Illustrative Example: Criminal Law (Sexual Offences and Related Matters) Amendment Act (No. 32) (2007) of South Africa, §55.

Aiding or abetting sexual assault

Legislation should provide that the punishment for aiding and abetting sexual assault may be the same as that imposed for the crime itself. Illustrative Example: Criminal Law (Sexual Offences and Related Matters) Amendment Act (No. 32) (2007) of South Africa, §55.

Sexual assaults which involve a means of recording or electronic technologies

Legislation should include a provision for crimes due to the use of recording.

·         For example, the Criminal Code Act Compilation Act (1913) of Western Australia states:

indecent act means an indecent act which is -

(a) committed in the presence of or viewed by any person; or
(b) photographed, videotaped, or recorded in any manner; to indecently record means to take, or permit to be taken, or make, or permit to be made, an indecent photograph, film, video tape, or other recording (including a sound recording);
(Chapter XXXI, 319 (1))

·         The New Jersey Code of Criminal Justice (1979), USA, includes a provision that criminalizes the disclosure of recorded materials without consent:

c. An actor commits a crime of the third degree if, knowing that he is not licensed or privileged to do so, he discloses any photograph, film, videotape, recording or any other reproduction of the image of another person whose intimate parts are exposed or who is engaged in an act of sexual penetration or sexual contact, unless that person has consented to such disclosure. For purposes of this subsection, "disclose" means sell, manufacture, give, provide, lend, trade, mail, deliver, transfer, publish, distribute, circulate, disseminate, present, exhibit, advertise or offer. Notwithstanding the provisions of subsection b. of N.J.S.2C:43-3, a fine not to exceed $30,000 may be imposed for a violation of this subsection. 2C:14-9

·         Legislation should include a provision for crimes due to the use of electronic technologies. Sometimes called cyberstalking, such crimes involve the use of the Internet, email or other electronic communications such as smartphones, to stalk, threaten, or commit malicious behavior, often sexual in nature. Illustrative Examples: United States examples of cyberstalking laws at National Conference of State Legislatures, State Cyberstalking and Cyberharassment Laws.

The National Network to End Domestic Violence (United States), Technology & Confidentiality Resources Toolkit (2011) assists domestic violence, dating abuse, sexual violence and stalking victim service organizations with specific and useful resources on confidentiality, safety, and privacy. It contains tipsheets and charts on a wide range of topics including cloud computing, high-tech stalking, and sexting, often in multiple languages. Illustrative Example: Tipsheet on sexting here.

Sexual assault on a minor involving the internet or other electronic technologies

·         Legislation should include a provision prohibiting electronic communication with a minor for sexual purposes. This act should be considered an aggravated sexual assault with enhanced penalties. Illustrative Example: the Penal Code of France (§§ 222-24) provides that five years may be added to the perpetrator’s sentence where the victim has been brought into contact with the perpetrator through the use of a communications network.

Example: The United Kingdom has instituted a “Risk of Sexual Harm Order,” a civil protection order which can prohibit adults from engaging in inappropriate behavior with children online. Sexual Offences Act (2003) Article 123.

Sexual assault involving incest

·         Legislation should provide that sexual assault in which a perpetrator assaults a person known to be related to them, legitimately or otherwise, as ancestor, descendant, brother, sister, uncle, aunt, nephew or niece, of whole or half blood, including the relationship of a parent and child by adoption or stepparent and step-child, should be considered aggravated sexual assault with enhanced penalties.

Example: the Criminal Code (2004) of Turkey provides an increased penalty for violating the physical integrity of another person by means of sexual conduct if the offence is committed “Against a person of first, second or third degree blood relation or a relative by marriage.” Article 102, (3) (c)

Legislation should provide that consent is irrelevant. (See: the Sexual Offences Act (1995) of Antigua and Barbuda, Article 8 (2))

Femicide

Legislation should include a provision defining and prohibiting femicide.

Examples:

Article 9 of the Integral Law Against Violence Against Women of Nicaragua (2012) defines femicide as murder of a woman by a man committed in the context of an unequal power relationship between men and women, in public or private and under certain circumstances, including as a result of group/gang rights. The Law also establishes specific measures to prevent, investigate, and punish femicide.

In April 2012, Argentina amended its criminal code to include femicide as an aggravated form of homicide that warrants special consideration. See: Código Penal de la Nación Argentina, Law No. 11.179 of 1984, art. 80. Under the new law, femicide is defined as the murder of a woman by a man in the context of gender-motivated violence.

Sexual assault as a tactic of war

Legislation should provide that sexual assaults which are perpetrated as part of a war or a campaign should be prosecuted as aggravated sexual assaults with high penalties.

See: Case Study on Prosecutor v. Akayesu (1998), above.

Crimes committed in the name of “honour”

·         Legislation should eliminate any defense based on “honour”.

·         Legislation should require that perpetrators should not be exculpated or given lesser sentences for crimes committed in the name of “honour.

·         Legislation should not allow the defense of provocation in crimes committed in the name of “honour.”

(See: Good practices in legislation on “harmful practices” against women, (2010), 3.3.3.4 and see the section on Developing Legislation on Crimes Committed in the Name of “Honour” in this Knowledge Module.)

Prompt complaint

Legislation should state that no adverse inference shall be drawn from a delay between the act of violence and the reporting of the act of violence. The judicial officer should be required by the legislation to so inform the jury.

Example: The Combating of Rape Act, No 8, (2000) of Namibia states:

7. In criminal proceedings at which an accused is charged with an offence of a sexual or indecent nature, the court shall not draw any inference only from the length of the delay between the commission of the sexual or indecent act and the laying of a complaint. Sec. 7

(See also: the Criminal Law (Sexual Offences and Related Matters) Amendment Act (No. 32) of South Africa, Section 59; and the UN Handbook, 3.9.6.)

Mediation

Legislation should not allow mediation in cases of sexual assault at any stage of the process. (See: UN Handbook, 3.9.1.)

Provocation

Legislation should not allow provocation as a defense to sexual assault. (See: Model Strategies, 7(d) p. 33.)

Other means of reconciliation

Legislation should not allow perpetrators to avoid punishment by reaching an agreement with the family of the victim/survivor or by providing the family with payment. (See: Good practices in legislation on “harmful practices” against women (2010), 3.6.1; Gender-Based Violence Laws in Sub-Saharan Africa, p. 32.)

Marriage between perpetrator and survivor

Legislation should remove any exemption from punishment for perpetrators of sexual assault who marry the survivor. (See: Good practices in legislation on “harmful practices” against women (2010), 3.3.7.3.) Legislation should explicitly prohibit sexual assault cases from being dismissed upon the marriage of the perpetrator and survivor. Legislation should state that if a marriage occurs between the perpetrator and survivor, the case should be examined and considered for prosecution as a forced marriage. Legislation should terminate parental rights of perpetrators for any child born of rape and prohibit custody or visitation rights of perpetrators for any child born of rape.

(See: The section on Forced and Child Marriage of this Knowledge Module.)

Firearms restrictions

Legislation should prohibit or restrict the purchase, possession and use of firearms and other regulated weapons by offenders convicted of sexual assault.

(See: World Health Organization, Violence Prevention: the evidence (2009), which states that when access to firearms is restricted, lives, families, and costs are saved.)

Sentencing

·         Sentencing for sexual assault should be graded based on harm. For example, Canada’s approach provides for penalties that increase in severity for sexual assault, sexual assault with a weapon, and sexual assault where in the perpetrator wounds, maims, disfigures or endangers the life of the complainant/survivor. (See: Article 271 of Canada, Criminal Code (R.S.C. 1985, c. C-46) as amended by R.S., 1985, c. 19 (3rd Supp.), s. 10; 1994, c. 44, s. 19; Article 272 of Canada, Criminal Code (R.S.C. 1985, c. 46) as amended by 1995, c. 39, s. 145; 2008, c. 6, s. 28; 2009, c. 22, s. 10; Article 273 of Canada, Criminal Code (R.S.C. 1985, c. C-46) as amended by 1995, c. 39, s. 146; 2008, c. 6, s. 29; 2009, c. 22, s. 11.

·         Drafters should ensure that legislation on sexual assault contains sentencing guidelines so that sentences for sexual assault are consistent country-wide and are commensurate with the gravity of the crime. For example, see Sentencing Guidelines for the United Kingdom on the Sexual Offences Act (2003) of United Kingdom; and UN Handbook, 3.11.1. For a list of goals in sentencing, see: Report of the Intergovernmental Expert Group Meeting to Review and Update the Model Strategies and Practical Measures on the Elimination of Violence against Women in the Field of Crime Prevention and Criminal Justice, March 2009, 17(a).

·         Legislation should state that evidence of prior acts of violence, including abuse, stalking or exploitation, should be considered in the sentencing guidelines. (See: Model Strategies, 7(f) p.34.)

·         Legislation should not contain lesser penalties for crimes against particular classifications of survivors, such as prostituted women or non-virgins. (See: UN Handbook, 3.11.2.)

·         Legislation should provide for aggravated sentences for sexual assault of a minor that include sexual assaults of all persons under the age of 18. The legislation should not include gradations in sentencing that result in lesser penalties for sexual assaults of older teenagers.

Example: The Act to Amend the Penal Code (2005) of Liberia states:

Rape is a felony of the first degree where:

The victim was less than 18 years of age at the time the offence was committed;…Section 2, 14.70, 4(a)(i).

Plea agreements and bail or conditional pre-trial release decisions

Legislation should require that judicial officers who determine bail decisions that allow the pre-trial release of an offender shall examine the dangers of each particular case of sexual assault as to the individual survivor as well as society and to delineate conditions designed for survivor safety. (See: National Advisory Council on Violence Against Women and the Violence Against Women Office, The Toolkit to End Violence Against Women,, p. 13; and Lethality or risk assessments in the section on Developing Legislation on Domestic Violence.)

Example: the Criminal Procedure Code of Minnesota, USA states:

(a) When a person is arrested for a crime against the person, the judge before whom the arrested person is taken shall review the facts surrounding the arrest and detention. If the person was arrested or detained for committing a crime of violence…the prosecutor or other appropriate person shall present relevant information involving the victim or the victim's family's account of the alleged crime to the judge to be considered in determining the arrested person's release. The arrested person must be ordered released pending trial or hearing on the person's personal recognizance or on an order to appear or upon the execution of an unsecured bond in a specified amount unless the judge determines that release (1) will be inimical to public safety, (2) will create a threat of bodily harm to the arrested person, the victim of the alleged crime, or another, or (3) will not reasonably assure the appearance of the arrested person at subsequent proceedings. §629.715 Subdv.1(a).

Legislation should require that plea agreements (allowing defendants to plead guilty to a lesser charge) in sexual assault, harassment and stalking cases should be carefully examined and decided with survivor safety as the foremost consideration. Besides the risk of flight, such factors as intimidation of the survivor or the survivor’s children and risk of harm to the same should be considered. (See: National Advisory Council on Violence Against Women and the Violence Against Women Office, The Toolkit to End Violence Against Women, p.13, p.16.)

Legislation should require that judicial officers receive input from the survivor which is relevant to plea and bail consideration. See section below on: Notification of case progress and disposition.

Example: The Sexual Offences Act (2003) of Lesotho states that in a bail application proceeding, a complainant has the right to “request the prosecutor in the proceedings to present any evidence to the court that may be relevant to any question under consideration by the court in the proceedings. Part VII, 28 (2)

Treatment or diversion programs for perpetrators and offender registration

Legislation should provide that if intervention, treatment or diversion programs (pretrial diversion programs are alternatives to prosecution which seek to divert offenders with no prior offences from traditional criminal justice processing into a program of supervision and services) are prescribed for perpetrators, the operators of such programs must work in close cooperation with survivor service providers to enable constant feedback from the complainant/survivor about the recurrence of violence.

Legislation should provide that all sentences to alternative, treatment, or diversion programs are to be handed down only in cases where there will be continuous monitoring of the case by justice officials and survivor organizations to ensure the survivor’s safety and the effectiveness of the sentence. Legislation should require that such alternative sentences be monitored and reviewed on a regular basis. Legislation should require immediate reports to probation officers and police about recurring violence. (See: UN Handbook 3.11.6; National Advisory Council on Violence Against Women and the Violence Against Women Office, The Toolkit to End Violence Against Women, p. 14).

Examples: The Criminalization of Violence against Women Law (2007) of Costa Rica (Spanish only) includes detailed conditions on when alternative sentences may be imposed, and on the alternatives which are available. Spain’s Organic Act 1/2004 of 28 December on Integrated Protection Measures against Gender Violence (2004) provides for suspension of certain penalties (under two years in jail) if the perpetrator participates in an intervention programme. (Article 35).

Sex offender registration

·         Legislation should require convicted sex offenders to register their location and employment with law enforcement agencies upon release from incarceration. Illustrative Examples: The Sexual Offences Act (2003) of United Kingdom, Sections 80 et. seq; The Criminal Law (Sexual Offences and Related Matters) Amendment Act (No. 32) of South Africa, which contains detailed provisions on establishing a National Register for Sex Offenders. Ch. 6; and The Sexual Offences Act (No.3) (2006) of Kenya which contains detailed provisions for establishing a Register for Convicted Sex Offenders and which also contains Sexual Offences (Dangerous Offenders DNA Data Bank) Regulations, 2008.

·         Legislation should require offenders who are charged with committing or attempting to commit crimes involving criminal sexual conduct but who plead to or are found guilty of a different crime to register their location and employment with law enforcement agencies if the crime which the offender pleads to or is found guilty of arose from the same set of circumstances as the original crime.

For excellent questions to assess risk or lethality in determining whether to release offenders, see the Center for Sex Offender Management, The Comprehensive Assessment Protocol, a Systemwide Review of Adult and Juvenile Sex Offender Management Strategies, section on Pre Trial Management. Available in English.

Example: The New York, United States, Sex Offense Courts have developed a sex offender protocol that recognizes that offenders are often out on bail or living in the community. Thus, maintaining frequent contact with offenders is prioritized. The Sex Offense Courts order swift consequences if violations occur and often require offenders to attend preventive services. Convicted offenders must also maintain contact with the Courts to enable monitoring of compliance with conditions of probation or incarceration and their compliance with the Sex Offender Registration Act.

Center for Sex Offender Management, Enhancing the Management of Adult and Juvenile Sex Offenders: A Handbook for Policymakers and Practitioners (2007). Available in English.

Center for Sex Offender Management, Twenty Strategies for Managing Sex Offenders in Your Jurisdiction (2008). Available in English.