Definition of Criminal 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 Criminal Sexual Assault

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; or

(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.
  • 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.

 

See the Sexual Assault section of this module for more information.


  • Sexual contact obtained without consent is often obtained not only through force, but also through coercion. Coercion can cover a wide range of behaviors, including intimidation, manipulation, threats of negative treatment (withholding a needed service or benefit), and blackmail. (See Sexual Assault, Stop VAW).
  • Legislation should explicitly define “widow cleansing” as a form of sexual assault, or nonconsensual sexual contact. In widow cleansing, community expectations and pressure may coerce a widow to have sex with a cleanser or her husband’s relative to cleanse her of her deceased husband’s spirit. Drafters should ensure that laws prohibiting sexual assault are applicable to the offense of widow cleansing. Drafters should take all appropriate measures to ensure that customary practices and laws do not authorize or condone “widow cleansing” and that perpetrators are punished. Widow cleansing is deeply embedded cultural practice in some African communities. Watch a video about changing laws and harmful practices such as widow cleansing in Malawi.
  • Drafters should also ensure that marital rape, including rape in levirate and sororate marriages, is a punishable crime. (See: Marital and Intimate Partner Sexual Assault, StopVAW) Levirate marriage is the forced marriage of a widow to the brother of her deceased husband; sororate marriage is the forced marriage of the sister of a deceased or infertile wife to marry or have sex with her brother-in-law, the widower/husband. (See: Section on Criminal Laws)

Case Study: Brunei


The Brunei Penal Code previously prevented police from taking action in cases where women report rape by their spouse; Section 375 of this code states that sexual intercourse with one’s wife is not rape if the woman is over 13 years of age. The Attorney General’s Chamber of Brunei has indicated that it currently has no plans to amend this section of the Penal Code; however, two new acts that have recently passed may provide some protection against sexual assault within marriage.


The Islamic Family Law Order 2010 and Married Women Act Order 2010 both define sexual assault as a form of domestic violence. The language of these orders makes clear that causing hurt to a family member or forcing them to engage in an act which results in harm are considered domestic abuse.


The punishment for breaching the protection order is a fine not exceeding $2,000 or imprisonment not exceeding six months, or both. Compensation may also be awarded to a victim taking into account the degree of the physical and mental harm suffered.


Research indicates that marital rape has significant consequences. Women who are raped by their partners are more likely to experience multiple assaults and completed sexual attacks. In addition, marital rape victims often suffer severe psychological consequences as a result of being assaulted by someone they presumably loved and trusted.


Critics of the new orders argue that they do not go far enough in providing protection. The laws do not refer to the crime as rape, but rather as sexual intercourse, and cases prosecuted under the new orders can only be brought to the Magistrate’s Court. There is no minimum sentence set forth by the law, meaning that a spouse found guilty could receive as little as a day in jail if convicted.

 

See: StopVAW, Brunei: Amendments May Provide Legal Recourse for Marital Rape Victims, The Advocates for Human Rights (2010).