Shubhsri Rajendra

Dr. Lyn J. Freymiller

CAS138T

12^th April 2016.

                                                 Sexual Assaults: Time for a Relook?

“… the perfect crime’ does not consist in killing the victim or the witnesses… but rather in obtaining the silence of the witness, the deafness of the judges, and the inconsistency (insanity) of the testimony.”

                                                                                                                      -(Lyotard 1988: 8)

Rape is a horrendous crime which leaves the victim scarred for life. It is also the most under reported crime. Statistics show that 63% of the cases are never reported to the authorities. It is also the costliest crime as it costs the country about one hundred and twenty-seven billion dollars per year (“Facts about Sexual Violence”). The United States Department of Justice very clearly defines sexual assault is any type of sexual contact or behaviour that occurs without the explicit consent of the recipient. Falling under the definition of sexual assault are sexual activities as forced sexual intercourse, forcible sodomy, child molestation, incest, fondling, and attempted rape (“What is Sexual Assault?”). What isn’t very clear however, are various aspects of what are the consequences for the victim as well as the accused. This has led to many unwanted consequences like the rapist not receiving punishment that commensurates the crime. There are other aspects like this, including the vagueness of the age of consent and the age gap provision, whether or not marital rape is punishable and unsatisfactory rape shield laws in many countries, not to mention the easiness of reporting rape that need to be discussed more. We thus need the United Nations to endorse uniform policies related to sexual assaults globally. We need this to ensure that no ghastly sexual crime goes unpunished because of difference in what the law describes to be a crime in different places.

For starters, the age of consent which is legally defined as age at which a person is no longer required to obtain parental consent to get married and/or to voluntarily agree to sexual intercourse has a very vague age range (“Age of Consent law and Legal Definition”). It differs from one state to another in the USA, ranging between sixteen to eighteen years old. For example, in states like Alabama, Alaska, Hawaii and DC it is sixteen, seventeen in states like Louisiana, Illinois and Colorado and as high as eighteen in states like Florida, Delaware, and California (“Age of Consent”). What also is varies from one state to another is the age gap provision. Some states have age of consent provisions in their statutory rape legislation that stipulate that sexual relations between teenagers or young adults should not exceed a certain age gap. For example, the state of New Jersey defines the age of consent as anyone between ages 13 and 16 may not legally have sex with someone 5 years or older than them. After someone has reached 17 years of age, they may choose to have sex with anyone older than them, provided that the sex act is consensual with both people involved. Other states' statutory rape legislation targets males. Therefore, it is legal for an older female to have sex with a teenage boy (“Sex Crimes”). Thirty-one states, including states like Utah, Wyoming, Pennsylvania have an age gap provision while the other nineteen which include states like Ohio, South Carolina, New York do not (“Age of Consent”). Thus, laws regarding the age of consent need to be reformed and be uniform in every state. This way, no felon can get away with a felony just because he is in a certain state.

Something that also needs to be discussed is how the age of consent also varies from one country to another. It is as high as twenty-one and twenty respectively in Bahrain and South Korea and as low as just eleven and twelve years old in Nigeria and Philippians and Angola. There are also several Middle Eastern and African countries that have no legal age of consent, but ban all sexual relations outside of marriage. This has raised concerns by many international organizations, especially in some countries where girls are married at as young as 9 or 10 years old. Countries with marriage-based ages of consent include Afghanistan, Iran, Kuwait, Libya, Maldives, Oman, Pakistan, Qatar, Sudan, Saudi Arabia, Yemen, and the UAE (“Highest and Lowest Ages of Consent”). We thus need to form universal policies about the age of consent in different countries to ensure that children who aren’t sexually aware of themselves or those around them aren’t exploited and unprotected by law.

Another policy that is as variable as ‘x’ in a mathematical equation is how rape felons are punished in different states and countries. For example, New York defines three degrees of rape and offenders are punished accordingly, ranging from four up to twenty-five years in prison. However, in Idaho, the rape of a female under the age of eighteen years is punishable only by one year in prison. No punishments for other felonies were give. Some states base the penalty for violations on the age of the offender, with older offenders receiving harsher penalties. For example, California, Maryland, Missouri, Nevada, and New York reserve their harshest statutory rape penalty for offenders who are age 21 or older (Norman-Eady, Reinhart, Martino). These laws also differ from one country to another. It may range from life imprisonment (which is actually just fourteen years) or death sentence in India to beheading in countries of the middle east like Saudi Arabia to imprisonment anywhere between three and twenty years like in Russia, depending on the brutality of the crime. France too follows an outlook similar to Russia’s only, their sentence ranges between fifteen to thirty years. If you think that is brutal, China’s definition of justice is a death sentence without a fair trial. This isn’t exactly ideal in all situations since some of the culprits were later found to be innocent. They sometimes also practice castration. There are also a lot of countries where felons, no matter the intensity of the crime, are just shot/hanged to death, like in North Korea, Egypt, Iran and Afghanistan to name a few (Bhattacharya). Even though no crime should go unpunished and rapists should be given the most severe punishment possible, some of these are just irrational and inhumane, like in China. Thus, we need to establish laws worldwide that ensure that no innocent gets punished and criminals get punishment equivalent to their crimes.

Another worrying topic is the consequences one faces as a culprit of marital rape since it’s still not punished everywhere. For instance, in Connecticut, only the kind by force is punished. The law says nothing about the spouse being drugged and this is only punishable by a short prison term. However, in Idaho, only men can rape women. Thus, wife on husband rape case doesn’t exist. There are also states like Iowa where it is not illegal as long as the “husband” and “wife” are above 12yrs of age. There are also similar to those in South Caroline where men or women raped by a spouse have just 30 days to report the incident to authorities. For the rape to count, it must have involved “the use or the threat to use a weapon … or physical violence of a high and aggravated nature.” The offense is treated as a felony but has a maximum sentence of 10 years, whereas rape of a non-spouse has a maximum sentence of 30 years(Byrne).

There are also countries like China, Afghanistan, Saudi Arabia and India where someone can rape their spouse and not worry about consequences because marital rape is legal there (Fox). According to lawmakers in India, argued it “has the potential of destroying the institution of marriage,” according to a report submitted to Parliament earlier this month. “If marital rape is brought under the law, the entire family system will be under great stress,” adds the report. Lawyers and women’s rights activists have sharply criticized the decision to leave marital rape out of the penal code (Rana). Marital rape, like any other kind of sexual assault affects the victim physically, emotionally and mentally. It makes up a major proportion of all rape cases around the world and thus, we need to ensure that there are proper laws and policies that guarantee protection to the victim not only in this country, but around the world too.

A rape shield law is a law that limits the defendant’s ability to introduce evidence or cross-examine rape complaints about their past sexual behaviour. The term also refers to a law that prohibits the publication of the identity of an alleged rape victim. Generally, rape shield laws will exclude any evidence that does not pertain directly to the sexual assault case at hand. This evidence can include evidence regarding the victim’s reputation and/or evidence of past sexual behaviour not related to the rape accusation at hand. Rape shield laws are usually implemented to save the victim from the humiliation and the fear of being questioned and thus promoting them to report such crimes(Kourosh). These laws however, differ from one country to another. For example, character evidence has been made irrelevant in cases of sexual assault in India and questions regarding the moral character of the victim or her previous sexual experiences are impermissible, even during the course of cross-examination (Character Evidence in Rape Trials). However, in Pakistan, the fact that the person accused is of good character is relevant in criminal proceedings. The fact that the accused is of bad character is irrelevant, unless evidence has been given that he has a good character, in which case it becomes relevant (Character Evidence in Rape Trials). There are also countries like the United Kingdom where, after the 1999 The Youth Justice and Criminal Evidence Act was introduced. It established the prima facie position that, except with the leave of the court, no evidence may be adduced and no evidence asked in cross-examination by or on behalf of the accused at trial about any sexual behaviour of the complainant. In order for the court to grant such leave, it must be satisfied that refusing leave “might have the result of rendering unsafe a conclusion of the jury or… the court on any relevant issue in the case” (Character Evidence in Rape Trials).

In most developed countries, it is relatively safe and comfortable for a victim to report a sexual assault. They aren’t exploited or questioned any more than necessary. This however, is not the case everywhere. For example, Bangladesh has received criticism for its employment of the “two-finger test” in rape investigations. This test consists of a physical examination of a woman who report rape during which a doctor inserts two fingers in the woman’s vagina to determine whether the woman is “habituated to sex” (Rape Statistics). This humiliation deters many women from reporting rape. There are also countries like Afghanistan where it is legally punishable but if a woman reports rape, they face a double risk of being subjected to violence: on one hand they can become victims of honor killings perpetrated by their families, and on the other hand they can be victimized by the laws of the country: they can be charged with adultery, a crime that can be punishable by death. Furthermore, they can be forced by their families to marry their rapist (Rape Statistics). We thus need policies around the world to make sure that the victims are protected under law and aren’t the ones who have to deal with anguish and trauma in addition to what being a victim to such ghastly crime brings with it.

To conclude, policies about many important issues are very vague and largely vary from one place to another, not just in the world but also in different states in the USA. The legal age of consent is as low as eleven years in Nigeria to as high as twenty-one in Bahrain while some countries don’t have one altogether. Rape felons are put in prison for as short as a year to as long as twenty-five years in some states in the USA while in some countries, it may vary from a death sentence in one to fifteen to thirty years in prison in another. What’s also concerning is that marital rape is not punishable everywhere. There are countries where they do not have any laws for this because they feel it’ll ruin the institution of marriage while there are places where it is only conditionally punishable. To top it all are the problems, the humiliation and the ordeal rape victims have to deal with in various countries. We thus need UN to endorse universally uniform laws and policies that ensure the uttermost protection to the victims and makes sure that no criminal goes unpunished just because of loopholes in the laws.

Bibliography:

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