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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.
  • 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

  • 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)