Core elements of legislation on sexual assault
Throughout this knowledge module, reference to certain provisions or sections of a piece of legislation, part of a legal judgment, or aspect of a practice does not imply that the legislation, judgment, or practice is considered in its entirety to be a good example or a promising practice.
Some of the laws cited herein may contain provisions which authorize the death penalty. In light of the United Nations General Assembly resolutions 62/149, 63/168, 65/206, and 67/176 calling for a moratorium on and ultimate abolition of capital punishment, the death penalty should not be included in sentencing provisions for crimes of violence against women and girls.
The following elements should be established as the core elements of any sexual assault law. Each element is discussed in detail starting with Definition of sexual assault, below:
- A definition of sexual assault which is not framed as a crime of honor or morality;
- A definition of sexual assault that does not require penetration or force;
- Prohibition of mitigating factors such as intoxication of perpetrator;
- Provision for enhanced penalties for aggravating circumstances such as the threat or use of force, or the age or disability of survivor;
- Provision for enhanced penalties for aggravating circumstances involving natural disaster situations and civil or political unrest or conflict situations.
- Criminalization of sexual assault within an intimate relationship;
- Burden on accused to prove consent;
- Provision for a broad range of circumstances in which consent is immaterial, such as sexual assault by an individual in a position of authority such as in a correctional facility or in a school setting or by individuals in certain professional relationships to the survivor such as an ongoing psychotherapist-patient relationship;
- Provision for a broad range of coercive circumstances around consent such as intimidation or fraud;
- Provision for mandatory investigation of sexual assault;
- Prohibition of requirement of corroboration of survivor’s evidence;
- Prohibition of introduction of survivor’s sexual history as evidence at all phases of civil or criminal trial where it is unrelated to the case;
- Prohibition on use of mediation at all stage of the process;
- Provision for financial compensation during the criminal trial and following the criminal trial;
- Prohibition on accepting financial settlement or marriage as settlement of claim of sexual assault;
- Prohibition of perpetrators from possessing firearms;
- Fully developed emergency and long-term order for protection remedies and no contact order remedies;
- Criminalization of violation of orders for protection and no contact orders;
- Provision for support services such as counseling and medical treatment to survivors at all stages of process;
- Mandated training for law enforcement, judicial, medical, and social service professionals.
- Mandated data collection on prevalence of sexual assault, disaggregated by gender, race, age, location of assault, and type of assault;
- Mandatory prevention and public awareness programs on sexual assault; and
- Mandatory data collection and monitoring of cases of sexual assault.
UNODC, Model Strategies and Practical Measures on the Elimination of Violence against Women in the Field of Crime Prevention and Criminal Justice Services.. Available in Arabic, Chinese, English, French, Russian, Spanish; hereinafter the Model Strategies.