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Capacity to commit sexual assault and other factors

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 for "payback" sexual assaults are prohibited. (Good practices in legislation on “harmful practices” against women, (2010), 3.3.10.2.)

Virginity tests

Legislation should prohibit virginity tests and call for prosecution of perpetrators under sexual assault provisions. Virginity testing by should be prosecuted and punished in accordance with country laws on aggravated sexual assault.

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.)

Attempted sexual assault

Legislation should provide that the punishment for an attempted sexual assault may be the same as that imposed for the crime itself. Illustrative Example: Criminal Law (Sexual Offences and Related Matters) Amendment Act (No. 32) (2007) of South Africa, §55.

Aiding or abetting sexual assault

Legislation should provide that the punishment for aiding and abetting sexual assault may be the same as that imposed for the crime itself. Illustrative Example: Criminal Law (Sexual Offences and Related Matters) Amendment Act (No. 32) (2007) of South Africa, §55.

Sexual assaults which involve a means of recording or electronic technologies

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

(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))

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

  • Legislation should include a provision for crimes due to the use of electronic technologies. Sometimes called cyberstalking, such crimes involve the use of the Internet, email or other electronic communications such as smartphones, to stalk, threaten, or commit malicious behavior, often sexual in nature. Illustrative Examples: United States examples of cyberstalking laws at National Conference of State Legislatures, State Cyberstalking and Cyberharassment Laws.

The National Network to End Domestic Violence (United States), Technology & Confidentiality Resources Toolkit (2011) assists domestic violence, dating abuse, sexual violence and stalking victim service organizations with specific and useful resources on confidentiality, safety, and privacy. It contains tipsheets and charts on a wide range of topics including cloud computing, high-tech stalking, and sexting, often in multiple languages. Illustrative Example: Tipsheet on sexting here.

Sexual assault on a minor involving the internet or other electronic technologies 

  • Legislation should include a provision prohibiting electronic communication with a minor for sexual purposes. This act should be considered an aggravated sexual assault with enhanced penalties. Illustrative Example: the Penal Code of France (§§ 222-24) provides that five years may be added to the perpetrator’s sentence where the victim has been brought into contact with the perpetrator through the use of a communications network.

Example: The United Kingdom has instituted a “Risk of Sexual Harm Order,” a civil protection order which can prohibit adults from engaging in inappropriate behavior with children online. Sexual Offences Act (2003) Article 123.

Sexual assault involving incest

  • Legislation should provide that 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. 

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)

Legislation should provide that consent is irrelevant. (See: the Sexual Offences Act (1995) of Antigua and Barbuda, Article 8 (2))

Femicide

Legislation should include a provision defining and prohibiting femicide.

 

Examples:

Article 9 of the Integral Law Against Violence Against Women of Nicaragua (2012) defines femicide as murder of a woman by a man committed in the context of an unequal power relationship between men and women, in public or private and under certain circumstances, including as a result of group/gang rights. The Law also establishes specific measures to prevent, investigate, and punish femicide.

 In April 2012, Argentina amended its criminal code to include femicide as an aggravated form of homicide that warrants special consideration. See: Código Penal de la Nación Argentina, Law No. 11.179 of 1984, art. 80.  Under the new law, femicide is defined as the murder of a woman by a man in the context of gender-motivated violence.

 

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.)