Legislation should include a description of aggravating circumstances. These circumstances should result in increased penalties upon conviction. (See: UN Handbook, 3.11.1)

Examples of aggravating circumstances include: 

• the age of the survivor;
• relationship between perpetrator and survivor;
• use or threat of use of violence;
• if the survivor suffered mental or physical injury as a result of the assault; 
• multiple perpetrators or accomplices;
• use or threat of use of weapons;
• if the survivor is physically or mentally impaired; and
• multiple acts of sexual assault.

(See: UN Handbook 3.4.3.1; Gender-Based Violence Laws in Sub-Saharan Africa, p. 26.)

For example, the Crimes Act (1900) of New South Wales, Australia, includes the following description of "aggravated sexual assault."

61J Aggravated sexual assault
(1) Any person who has sexual intercourse with another person without the consent of the other person and in circumstances of aggravation and who knows that the other person does not consent to the sexual intercourse is liable to imprisonment for 20 years.

(2) In this section, "circumstances of aggravation" means circumstances in which:

(a) at the time of, or immediately before or after, the commission of the offence, the alleged offender intentionally or recklessly inflicts actual bodily harm on the alleged victim or any other person who is present or nearby, or
(b) at the time of, or immediately before or after, the commission of the offence, the alleged offender threatens to inflict actual bodily harm on the alleged victim or any other person who is present or nearby by means of an offensive weapon or instrument, or
(c) the alleged offender is in the company of another person or persons, or
(d) the alleged victim is under the age of 16 years, or
(e) the alleged victim is (whether generally or at the time of the commission of the offence) under the authority of the alleged offender, or
(f) the alleged victim has a serious physical disability, or
(g) the alleged victim has a cognitive impairment, or
(h) the alleged offender breaks and enters into any dwelling-house or other building with the intention of committing the offence or any other serious indictable offence, or
(i) the alleged offender deprives the alleged victim of his or her liberty for a period before or after the commission of the offence. Article 61J

Promising practice: The Criminal Code Act (1974) of Papua New Guinea states that circumstances of aggravation may include circumstances not described in the legislation. 

Sentencing for sexual assault should be graded based on harm.For example, Canada’s approach provides for penalties that increase in severity for sexual assault, sexual assault with a weapon, and sexuaassault where in the perpetrator wounds, maims, disfigures or endangers the life of the complainant/survivor.
(See: Article 271 of Canada, Criminal Code (R.S.C. 1985, c. C-46) as amended by R.S., 1985, c. 19 (3rd Supp.), s. 10; 1994, c.44, s. 19; Article 272 of Canada, Criminal Code (R.S.C. 1985, c. 46) as amended by 1995, c. 39, s. 145; 2008, c. 6, s. 28; 2009, c. 22, s. 10; Article 273 of Canada, Criminal Code (R.S.C. 1985, c. C-46) as amended by 1995, c. 39, s. 146; 2008, c. 6, s. 29; 2009, c. 22, s.)

Sexual assault of minors

Legislation should provide for aggravated sentences for sexual assault of a minor that include sexual assaults of all persons under the age of 18. The legislation should not include gradations in sentencing that result in lesser penalties for sexual assaults of older teenagers.

Sexual assault of vulnerable populations

Legislation should provide that the sexual assault of certain individuals in vulnerable populations, such as women and children in situations of armed conflict, women in custody, prostituted women, disabled or incapacitated women, women who are being transported due to infirmity or disability, and children, should constitute an aggravating factor in the sentencing phase of the prosecution. Legislation should provide that law enforcement must investigate and prosecute the case as with any other sexual assault.
 

For example, the Criminal Code (1997) of the Republic of Kazakhstan states that rape “with the use of conditions of social disaster, or in the course of mass unrest,” shall receive a penalty which is increased by 3-5 years. Article 120(3) The Criminal Code (2003) of the Federation of Bosnia and Herzegovina calls for an increase in sentencing for those who commit rape “out of hatred on the grounds of national or ethnic origin, race, religion, sex or language.” Article 203 (4)

For a discussion of rape as a weapon of war and its consequences, see: “Now, The World is Without Me”: An Investigation of Sexual Violence in Eastern Democratic Republic of Congo (2010).

(See also: The Advocates for Human Rights, StopVAW Sections: Sexual Assault and Vulnerable Populations; Custodial Sexual Assault; Women with Disabilities; Sexual Assault During Armed Conflict; and the United Nations, Model Strategies p. 22.)