Often, legal definitions of rape prohibit sexual conduct that is "forced" or accomplished by means of "forcible compulsion" or physical violence. The laws of Belarus, the Czech Republic, Georgia, Kazakhstan, Kyrgyzstan, Latvia, Slovakia, Tajikistan, Ukraine, and Uzbekistan, for example, define rape as sexual intercourse accomplished through force or physical violence (or the threat of such violence), or against a woman who is "defenceless" or "helpless." From International Helsinki Federation for Human Rights, Women 2000: An Investigation into the Status of Women's Rights in Central and South-Eastern Europe and the Newly Independent States 76, 148, 183, 229, 244, 261, 406, 437, 487, 504 (9 November 2000). In Serbia, the victim must generally "prove that she did not want to have sex (i.e. real and serious resistance), and that her resistance lasted as long as the use of force (if she resisted in the beginning and later gave up, it is not considered resistance anymore). Romania, however, punishes sexual intercourse obtained through coercion. From International Helsinki Federation for Human Rights, Women 2000: An Investigation into the Status of Women's Rights in Central and South-Eastern Europe and the Newly Independent States 363, 533 (9 November 2000).
Even when the legal definition does not itself require the prosecution to show that physical force was used, other aspects of the law may ultimately result in a rape perpetrated by physical force being punished more severely than a rape perpetrated without the use of physical force. For example, some statutory schemes, such as those in Germany, Spain, and some states in the United States, include "degrees" of sexual assault. From Ivana Bacik, Catherine Maunsell, & Susan Gogan, The Legal Process and Victims of Rape 1 (September 1998). Under such schemes, rape combined with physical violence is classified as a higher degree of assault and thus subject to increased penalties. Although privileging of assault that is accompanied by physical assault over assault that is not should be avoided, "degree" systems have also been cited as ways to successfully increase sexual assault reporting and conviction levels. From Patricia Weiser Easeal, Violence Prevention Today: Rape (October 1992).
There are a number of both conceptual and practical problems with force requirements. Practically, such definitions exclude nonconsensual sexual contact that is accomplished through a variety of other coercive and manipulative means—for example, through abuse of position or through threats. A perpetrator may also intimidate his victim into sexual conduct through his sheer physical size, without ever using "force." As one expert has noted, "[i]n many acquaintance rapes, the offender uses a high level of verbal coercion but little physical force." From Testimony of Professor Michelle J. Anderson before the Supreme Court of Pennsylvania, Committee on Racial and Gender Bias in the Justice System (6 December 2001); Patricia Weiser Easeal, Violence Prevention Today: Rape (October 1992).
Force requirements may also result in stranger rapes being punished more severely than acquaintance rapes. Professor Anderson explains:
Women who have been raped indicate [that] "assaults by strangers were perceived more than acquaintance rapes to involve threats of bodily harm, hitting, slapping, and display or use of weapons." . . . Most rapists, particularly acquaintance rapists, do not employ physical force but use verbal coercion to control.
While acquaintance rapes are often punished less severely than are stranger rapes, they are also often more traumatic to the victim: "[A]cquaintance rape victims suffer more from the psychological damage of the experience. Self-blame is higher when a woman is raped by an acquaintance." From Testimony of Professor Michelle J. Anderson before the Supreme Court of Pennsylvania, Committee on Racial and Gender Bias in the Justice System (6 December 2001) (citations omitted).
Force requirements also privilege non-sexual over sexual violence. As the Special Rapporteur has explained in her 1997 report, systems that create degrees of sexual offences "may undermine the seriousness of sexual violence that fails to be manifested by physical violence." Further, force requirements mean that "the use of force effectively determines the seriousness of the crime." Such definitions punish what are actually two separate crimes—the crime of nonconsensual sexual contact, and the crime of physical assault. Many have argued that those who commit forcible sexual assault should be punished for both the nonconsensual sexual contact and the physical assault.
Some jurisdictions have reformed their laws to eliminate the requirement that sexual assault be accomplished through physical force. As Human Rights Watch notes, prior to 1996, Russia's sexual assault law prohibited "sexual intercourse through the use of physical force, or through the threat of its use toward the victim or to other persons." (Emphasis added.) This law was amended in 1996 to delete the word "physical," thus broadening the crime of sexual assault. From Human Rights Watch, Too Little, Too Late: State Response to Violence Against Women, Vol. 9, No. 13(D) (December 1997).
An alternative sexual assault law may be found in the United Nations expert group report entitled "Good practices in legislation on violence against women" Section 4.C. For the Russian version of the report recommendations, click here.
Historically, many jurisdictions also required a woman to resist her assailant before her assailant could be found guilty of rape. Such resistance requirements impose their own set of difficulties. Women may decide to or be unable to physically resist an attacker for a number of reasons. A victim may "freeze," or may decide not to resist because she believes she would be harmed if she resisted. Adapted from 2003 Report of the Special Rapporteur on Violence Against Women, Developments in the area of violence against women (1994-2002) (E/CN.4/2003/75 and Corr.1) 39 (6 January 2003); 1997 Report of the Special Rapporteur on Violence Against Women, Alternative Approaches and Ways and Means Within the United Nations System for Improving the Effective Enjoyment of Human Rights and Fundamental Freedoms (E/CN.4/1997/47) (12 February 1997); Dorothy Q. Thomas & Robin S. Levi, Common Abuses Against Women, in 1 Women and International Human Rights Law 139, 197 (Kelly D. Askin & Dorean M. Koenig eds. 1999); Neal Miller, Review of State Sexual Assault Laws: 1997 (7 October 1997); Testimony of Professor Michelle J. Anderson before the Supreme Court of Pennsylvania, Committee on Racial and Gender Bias in the Justice System (6 December 2001).
For example, even when not legally required, force and resistance "requirements" find their way into sexual assault prosecutions. As the former Special Rapporteur has explained, judges, juries and prosecutors alike are more likely to believe that a perpetrator is guilty of sexual assault if the assault was accompanied by other physical injury. From 1997 Report of the Special Rapporteur on Violence Against Women, Alternative Approaches and Ways and Means Within the United Nations System for Improving the Effective Enjoyment of Human Rights and Fundamental Freedoms (E/CN.4/1997/47) (12 February 1997). Similarly, women who do not resist their attacker often have a more difficult time proving that an assault occurred, even if there is no explicit resistance requirement written into the law.
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