The Evolution of the Legal Definition of Rape

Rape remains one of the most widespread crimes worldwide, affecting one in ten women. [1] Rape has been criminalized in the majority of countries, yet most of the perpetrators remain unprosecuted. [2] Under international humanitarian and criminal law, it is widely understood that rape violates several human rights such as the right to bodily integrity, the right to autonomy (including sexual autonomy), and the right to privacy. [3] The definitions of rape that are most commonly accepted today are based on the lack of consent, rather than on the presence of physical force, and such definitions prove to be most inclusive of all rape victims and ensure the prosecution of all perpetrators. However, such definitions evolved over time, beginning with the acknowledgment of rape as a war crime, and still continues to be revised to adress issues with defining marital rape as a crime. 

In 1994, the United Nations (UN) established the mandate of the Special Rapporteur, the first human rights instrument that focused solely on the violence against women. This mandate was also the first that paid special attention to the criminalization of rape. The following year, in the first report to the Commission on Human Rights, Special Rapporteur Radhika Coomaraswamy recommended that the definition of rape must be based on a lack of consent and include all types of penetration so that all rape cases are prosecutable. The report focused on the issues with courts requiring evidence, which was often expected to be evidence of force and physical resistance from the victim. [4] Nearly two decades later, in 2011, the Istanbul Convention defined rape as “all forms of sexual acts which are performed on another person without her or his freely given consent and which are carried out intentionally.” [5] The convention was signed by the European Union and forty-five countries, and ratified by thirty-four. This established an international standard accepted today in which consent is the dividing line between rape and sexual intercourse, effectively broadening the scope of inclusion of all rape cases and enabling them to be prosecuted.

Following World War II, the Nuremberg Tribunal prosecuted individuals associated with Nazi leadership in Germany who committed war crimes and other human rights abuses. However, these trials did not consider rape a war crime. This meant that, despite numeorous cases of rape being committed both by the German armed forces and Nazi military organizations (both in concentration camps and in occupied territories), the Nuremberg Tribunal did not consider it during its trials. [6] Later, in 1949, the Geneva Convention addressed a central shortcoming of the Nuremberg Tribunal by addressing and criminalizing rape in the context of war under humanitarian law. However, Article 27 of the convention states, “women shall be especially protected against any attack on their honour, in particular against rape, enforced prostitution, or any form of indecent assault.” [7] Such wording established rape as an attack on a woman’s honor rather than a physical violation of a person, which is a patriarchal understanding of the crime that fails to take into account the physical integrity of a woman as a person, and unlike the inclusive language of the Istanbul Convention, implies that men cannot be victims of sexual assault.

The most prominent breakthroughs in the criminalization of rape in the context of conflict occured five years after the Security Council first condemned rape in war, with the case of Prosecutor v. Furundžija (1998). The Criminal Tribunal for the Former Yugoslavia (ICTY) tried the case of Anto Furundžija, a local commander at the Vitez Municipality of Bosnia. He stood trial for crimes of sexual violence against Bosnian women, including rape, and was found guilty on all charges on the account of violating the Geneva Convention. [8] The trial was the first to address sexual violence in the context of war before the law and established rape as a crime against humanity on the international level. This caused the necessity to define what constitutes as rape in not only these international conventions but also in various legislations around the world. In 2011, the Istanbul Convention was adopted as one of the responses to these issues.

However, despite the Istanbul Convention broadly defining rape, the legal definition of rape varies across nations, occasionally even excluding certain groups of people. Only eight European countries have modified their laws to comply with the standard set by the convention, and the other twenty-three still base their definition on force rather than a lack of consent. Additionally, definitions often include the conditions of penetration, exclude marital rape, and consider cases of women only. Such factors often determine why instances of rape are rarely reported or prosecuted.

In 2003, M.C. v. Bulgaria challenged the legal definition of rape in Bulgaria, as the plaintiff argued that the Bulgarian law failed to protect M.C. before the European Court of Human Rights (ECHR). M.C., a 14 year-old girl, had alleged that she was raped by two men, but the Bulgarian court found no evidence of force being used and ruled that rape had not been committed. Before the ECHR, M.C. had two main complaints. The first was that Bulgarian law (including the definition of rape used at the time) failed to protect her, and the second was that the investigation was not conducted thoroughly. The ECHR found that Bulgaria had failed to comply with its obligations as the member-state of the Convention for the Protection of Human Rights and Fundamental Freedoms, citing Articles 3 and 8 of the convention, and ordered Bulgaria to pay the victim damages and costs. [9] With this case, the ECHR established the state’s responsibility and obligation to investigate and punish rape according to the international standard. 

Similarly, in the case of Vertido v. The Philippines (2010), Karen Tayag Vertido argued that the court acquitting the defendant, on the basis that “Vertido had ample opportunities to escape her attacker,” violated the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). [10] Known as an international bill of rights for women adopted by the UN General Assembly in 1979, CEDAW obliges a state to change and abolish all existing laws that enable discrimination against women. The Committee on the Elimination of Discrimination Against Women found that the Filipino court had relied on the gender biases and stereotypes surrounding rape and recommended that the Philippines compensate Vertido and review the law to confirm that a lack of consent is the key element of defining rape. [11] The case was also one of the first to confirm coercive circumstances as the basis for a rape allegation. 

Thus, the process of redefining rape in accordance with the definition introduced by the Istanbul Convention has been allowing more rape cases to be prosecuted. However, one of the goals of defining rape by focusing on the consent of the victim was to ensure the criminalization of marital rape as well. Even in countries that criminalize rape, marital rape may be exempt from the definition. For example, Lebanon’s laws criminalize the use of violence to claim marital intercourse, but not the rape itself. [12] As the international standard on rape was established, most states began changing their laws to include marital rape as well. However, not all states accepted such changes, and although they changed the law to define rape based on consent, they still managed to maintain an exemption for marital rape. Nigerian law, as another example, defines rape as “unlawful carnal knowledge of a woman or girl without her consent.” [13] Similar to the standard of the Istanbul Convention, Nigeria’s definition makes lack of consent – not force – the key element. However, the law also defines “unlawful carnal knowledge” as “carnal connection which takes place otherwise than between husband and wife,” which still exempts marital rape from prosecution. [14] The issue of marital rape remains in countries worldwide, as the rape of a woman by her spouse is legal in at least ten, such as Ghana, Singapore and India. The perpetrator may also be acquitted if he marries the victim in at least nine states, including Syria and Libya. [15]

The criminalization and definition of rape on the international level have evolved drastically over the past two centuries. As such, even though the definition established by the Istanbul Convention of rape is not universally implemented, it represents a step toward the improvement of jurisprudence around the world concerning this crime. The definition centered around consent is the most inclusive definition as it does not require evidence of physical resistance or force and validates the criminalization of rape in the cases where victims were not able to resist or escape. Thus, the Istanbul Convention’s definition should be adopted by all nations to allow for the prosecution of all rapists and to protect all rape victims. The revision of various jurisprudence around the world has already begun according to such standard, and even though it is an ongoing process (as seen with the issue of recognizing marital rape), its existence provides optimism for the future for its global implementation.

Edited by Rachel Ramenda

Sources

[1] Dubravka Šimonović, “Rape as a grave, systematic and widespread human rights violation, a crime and a manifestation of gender-based violence against women and girls, and its prevention,” Human Rights Council, 47th Session, 3 (2021).

[2] Id at 3.

[3] Id at 5.

[4] Id at 5, 6.

[5] Id at 7. 

[6] Id at 9.

[7] Id at 8. 

[8] Prosecutor v. Furundžija, The Criminal Tribunal for the Former Yugoslavia, 122 (1998), https://ijrcenter.org/international-criminal-law/icty/case-summaries/furundzija/

[9] Legal Information Institute, M.C. v. Bulgaria, Cornell Law School, online at https://www.law.cornell.edu/women-and-justice/resource/mc_v_bulgaria (visited July 28, 2021).

[10] Legal Information Institute, Vertido v. The Philippines, Cornell Law School, online at https://www.law.cornell.edu/women-and-justice/resource/karen_tayag_vertido_v_the_philippines(visited August 16, 2021).

[11] Id.

[12] Šimonović, “Rape as a grave, systematic and widespread human rights violation,” 13

[13] Id at 12.

[14] “The World’s Shame: The Global Rape Epidemic – How Laws Around the World Are Failing to Protect Women and Girls from Sexual Violence,” Equality Now, 25 (2017).

[15] Id.