Capacity to commit sexual

Legislation should not include a provision which states that a person is considered by reason of age as being physically incapable of committing a sexual assault. (See: the Criminal Law (Rape) (Amendment) Act of Ireland (1990), Section 6.)

Adultery

Legislation should require the repeal of any criminal offence related to adultery. In some countries, a woman who is unable to prove a case of rape may be charged with adultery. Adultery laws are often implemented only against women. (See: Good practices in legislation on “harmful practices” against women, (2010), 3.3.3.3)

“Payback” rape or sexual assault

Legislation should provide that the rape or sexual assault of individuals to punish the individual’s family or clan is an aggravated form of sexual assault which should be punished in accordance with country laws on aggravated rape or sexual assault.  Legislation should require that exemption from punishment or reductions in sentence are prohibited. (Good practices in legislation on “harmful practices” against women, (2010), 3.3.10.2.)

Compelled sexual assault or rape

Legislation should criminalize the act of compelling a third party to commit a sexual assault or rape and the act of compelling a third party to witness a sexual assault or rape. Legislation should criminalize the act of compelled self-sexual assault. (See: the Criminal Law (Sexual Offences and Related Matters) Amendment Act (No. 32) (2007) of South Africa, Chapter 2.)

Sexual assaults which involve a means of recording

Legislation should include a provision for crimes due to the use of recording.

• For example, the Criminal Code Act Compilation Act (1913) of Western Australia states:
  indecent act means an indecent act which is -

(a)   committed in the presence of or viewed by any person; or
(b)  photographed, videotaped, or recorded in any manner; to indecently record means to take, or permit to be taken, or make, or permit to be made, an indecent photograph, film, video tape, or other recording (including a sound recording); (Chapter XXXI, 319 (1))

• The New Jersey Code of Criminal Justice (1979), USA, includes a provision that criminalizes the disclosure of recorded materials without consent:

c.   An actor commits a crime of the third degree if, knowing that he is not licensed or privileged to do so, he discloses any photograph, film, videotape, recording or any other reproduction of the image of another person whose intimate parts are exposed or who is engaged in an act of sexual penetration or sexual contact, unless that person has consented to such disclosure. For purposes of this subsection, "disclose" means sell, manufacture, give, provide, lend, trade, mail, deliver, transfer, publish, distribute, circulate, disseminate, present, exhibit, advertise or offer. Notwithstanding the provisions of subsection b. of N.J.S.2C:43-3, a fine not to exceed $30,000 may be imposed for a violation of this subsection. 2C:14-9

Sexual assault involving incest

Sexual assault in which a perpetrator assaults a person known to be related to them, legitimately or otherwise, as ancestor, descendant, brother, sister, uncle, aunt, nephew or niece, of whole or half blood, including the relationship of a parent and child by adoption or stepparent and step-child, should be considered aggravated sexual assault with enhanced penalties. 

For example, the Criminal Code (2004) of Turkey provides an increased penalty for violating the physical integrity of another person by means of sexual conduct if the offence is committed “Against a person of first, second or third degree blood relation or a relative by marriage.” Article 102, (3) (c)

Consent should be irrelevant. (See: the Sexual Offences Act (1995) of Antigua and Barbuda, Article 8 (2))

Sexual assault as a tactic of war

Legislation should provide that sexual assaults which are perpetrated as part of a war or a campaign should be prosecuted as aggravated sexual assaults with high penalties.

See: Case Study on Prosecutor v. Akayesu (1998), above.

Crimes committed in the name of “honour”

• Legislation should eliminate any defense based on “honour”.

• Legislation should require that perpetrators should not be exculpated or given lesser sentences for crimes committed in the name of “honour.

• Legislation should not allow the defense of provocation in crimes committed in the name of “honour.”

(See: Good practices in legislation on “harmful practices” against women, (2010), 3.3.3.4 and see the section on Developing Legislation on Crimes Committed in the Name of “Honour” in this Knowledge Module.)