Rape Law Commonalities

2020 ◽  
pp. 57-74
Author(s):  
Stuart P. Green
Keyword(s):  
Sexual Assault ◽  
Criminal Law ◽  
Sexual Contact ◽  
Historical Overview ◽  
Rape Law ◽  
Definition Of ◽  
Act Requirement

This chapter focuses on a range of issues common to all six of the rape paradigms that are described in subsequent chapters. It begins with a brief historical overview of rape law, observing a significant expansion in the definition of rape and sexual assault along two axes, namely, the kinds of sexual contact covered and the means by which nonconsent is manifested. It then considers the disparate ways in which the labels rape and sexual assault have been used, and makes an argument for retaining the term rape in the criminal law. Next, it considers how the physical act requirement in rape and sexual assault has been defined in a range of criminal codes, finally touching on some of the challenges of offense grading.

scholarly journals Sexual Assault Cases at the Alberta Court of Appeal: The Roots of Ewanchuk and the Unfinished Revolution

2014 ◽  
Vol 52 (1) ◽  
pp. 127 ◽  
Author(s):  
Janine Benedet
Keyword(s):  
Sexual Assault ◽  
Criminal Law ◽  
Law Reform ◽  
Sexual Offences ◽  
Rape Law ◽  
Rape Law Reform ◽  
Definition Of ◽  
Court Of Appeal

This article surveys rape law reform efforts in Canadian criminal law by mapping these changes onto the decisions of the Alberta Court of Appeal. First, the article outlines how decisions in the 1970s and 1980s reflected ideas and assumptions about sexual offences. It then traces how these ideas were challenged in law reform efforts in 1983 and 1992. Next the article turns to the definition of non-consent and the Ewanchuk case, and how the reasons at the Court of Appeal reflect evolving attitudes to sexual assault. Finally, the article ends with reflections on sexual assault law following the Ewanchuk decision.

Making the Call: College Students’ Legal Consciousness and Hypothetical Activation of Police for Sexual Assaults

2021 ◽  
pp. 107780122110211
Author(s):  
Trish Oberweis ◽  
Dayna Henry ◽  
Stacey Griner ◽  
Ekaterina Gorislavsky
Keyword(s):  
College Students ◽  
Sexual Assault ◽  
Sexual Contact ◽  
Legal Consciousness ◽  
Sexual Assault Prevention ◽  
Sexual Assaults ◽  
Assault Victims ◽  
Definition Of ◽  
Willingness To Report ◽  
Assault Prevention

Research has identified the necessity of sexual assault victims to label their experience as criminal to initiate reporting. However, barriers exist in labeling uninvited sexual contact as criminal. This study examined college students’ assessments of whether eight nonconsensual behaviors met the legal definition of sexual assault, and whether such behaviors should be reported to police. Results indicated students acknowledged the nonconsensual behaviors as criminal; however, gaps were identified between awareness that the acts were criminal and willingness to report to police. Findings demonstrate a need for continued efforts for sexual assault prevention among college students.

Law, Violence, and Sexual Consent

2020 ◽  
pp. 277-310
Author(s):  
Latika Vashist
Keyword(s):  
Grounded Theory ◽  
Criminal Law ◽  
Sexual Consent ◽  
Legal Scholarship ◽  
Legal Violence ◽  
Rape Law ◽  
The Subject ◽  
Definition Of ◽  
Sex Positive ◽  
Feminist Legal Scholarship

This essay approaches the question of law and violence through the category of sexual consent, as it is articulated, interpreted and theorized in rape law in India. While the incorporation of an explicit definition of sexual consent has been seen as a feminist move in the criminal law in India, I argue that consent, being grounded in the liberal models of abstract individualism, is premised on an under-theorized conception of sexuality as well as ‘desire’. It is my claim that if law seeks to perform an ‘educative role’ and feminist legal scholarship and pedagogy is an attempt at an ‘uncoercive re-arrangement of desires’,i then we need to produce more nuanced accounts of the sexual and desiring subjects. The dominant frames of sex-negative and sex-positive feminisms may not offer us any insights into this and may inadvertently become complicit with legal violence in its foundational as well as interpretive moments. In this backdrop, I will argue that we need to push towards a more complex understanding of consent based on a more grounded theory of the subject at the centre of law and feminism which takes into account the complexities, contradictions, complicities, and violence that form human subjectivity, sexuality, and desire. The essay critically examines the definition of consent introduced in 2013 criminal law amendments and argues for a reading of sexual consent within a relational psychoanalytic framework that takes desire seriously.

The Mistake of Fact Excuse in Queensland Rape Law

2020 ◽  
Vol 39 (1) ◽  
pp. 1-32
Author(s):  
Jonathan Crowe ◽  
Bri Lee
Keyword(s):  
Sexual Assault ◽  
Social Behaviour ◽  
Rape Law ◽  
Voluntary Consent ◽  
Definition Of

This article considers the role of the excuse of mistake of fact in Queensland rape and sexual assault law. We argue that the excuse has undesirable and socially regressive consequences by allowing reference to factors such as the complainant’s social behaviour, relationship to the defendant or lack of overt resistance that are at odds with the definition of free and voluntary consent. The excuse has also led to problematic results in cases involving impaired capacity (such as intoxication, mental incapacity or linguistic incapacity) by the defendant or the complainant. We canvass two potential reforms aimed at addressing these issues. The first would render the excuse inapplicable to the issue of consent in rape and sexual assault cases, while the second would limit the excuse to address its most troubling outcomes.

scholarly journals Defense of a Basic Voluntary Act Requirement in Criminal Law from Philosophies of Action

2020 ◽  
Vol 23 (4) ◽  
pp. 437-470
Author(s):  
J.J. Child
Keyword(s):  
Criminal Law ◽  
Criminal Responsibility ◽  
General Definition ◽  
Abstract Principle ◽  
Definition Of ◽  
Act Requirement

When looking to identify the basic ingredients of criminal responsibility, reference is standardly made to a voluntary act requirement (VAR). We blame a defendant (D) for what she has done or (perhaps) failed to do where such doing or failing to do is proscribed by law; we do not punish mere thoughts or character. However, despite the continued appeal of the VAR in abstract principle, the precise definitions and restrictions entailed within it are not always clear, and its usefulness in preventing inappropriate criminalization is openly (and in many cases correctly) challenged. Principally, and crucially, the VAR has received sustained attack in recent years from critics within the philosophies of action, highlighting its descriptive and normative shortcomings. It is contended that such criticism is misplaced. This article provides defense to a stripped-back definition of the VAR, distinguishing the general definition of action in philosophy from the definition of action within the criminal law, and seeking to identify and preserve a doctrinally workable model of the latter.

A Philosophical Analysis To Uncover The Meaning And Terminology Of Person In Indonesian Criminal Law Context

2017 ◽  
Vol 1 (1) ◽  
pp. 56
Author(s):  
Nani Mulyati ◽  
Topo Santoso ◽  
Elwi Danil
Keyword(s):  
Criminal Law ◽  
Sufficient Conditions ◽  
Criminal Code ◽  
Legal Person ◽  
Philosophical Approach ◽  
Legal Personality ◽  
Legal Subject ◽  
Long Time ◽  
Definition Of ◽  
Broad Meaning

The definition of person and non-person always change through legal history. Long time ago, law did not recognize the personality of slaves. Recently, it accepted non-human legal subject as legitimate person before the law. This article examines sufficient conditions for being person in the eye of law according to its particular purposes, and then, analyses the meaning of legal person in criminal law. In order to do that, scientific methodology that is adopted in this research is doctrinal legal research combined with philosophical approach. Some theories regarding person and legal person were analysed, and then the concept of person was associated with the accepted definition of legal person that is adopted in the latest Indonesian drafted criminal code. From the study that has been done, can be construed that person in criminal law concerned with norm adressat of the rule, as the author of the acts or omissions, and not merely the holder of rights. It has to be someone or something with the ability to think rationally and the ability to be responsible for the choices he/she made. Drafted penal code embraces human and corporation as its norm adressat. Corporation defined with broad meaning of collectives. Consequently, it will include not only entities with legal personality, but also associations without legal personality. Furthermore, it may also hold all kind of collective namely states, states bodies, political parties, state’s corporation, be criminally liable.

Historical Experience of Criminalization: to the Centenary of the Guiding Principles on Criminal Law of the RSFSR

2019 ◽  
pp. 31-35
Author(s):  
Ivan Kozachenko
Keyword(s):  
Criminal Law ◽  
Criminal Code ◽  
Historical Experience ◽  
Law System ◽  
Political Situation ◽  
Historical Method ◽  
Advantages And Disadvantages ◽  
Concept Planning ◽  
Guiding Principles ◽  
Definition Of

The creation of the Guiding Principles on the Criminal Law of the RSFSR of 1919 is studied taking into account extremely complicated internal and external political situation in the country at the beginning of the twentieth century. Using the methods of analysis, synthesis, as well as comparative and historical method, the author determines the significance of the Guiding Principles in the law system of the young Soviet state. Some key norms of the document are examined. In particular, the definition of criminal law is analyzed and its advantages and disadvantages are identified. It is noted that the definition of a crime was formulated too broadly, and more significant steps in criminalization of different acts were made with the adoption of the RSFSR Criminal Code of 1922. It is indicated which persons were not punished according to the Guidelines. Attention is drawn to the way in which such a method of protection as necessary defense was set forth in this act. The Guiding Principles are not without certain disadvantages: for example, the institution of complicity is not sufficiently disclosed, there is lexical redundancy in the definition of the concept «planning the offence». However, the discrepancies between the main provisions covered in the Guidelines are explainable and excusable, taking into account the historical situation at the time of their adoption. The analyzed document became the basis for Russian criminal law, and some of its provisions are still relevant.

Consent after the House of Lords: Taking and leading astray the Law of Theft

Legal Studies ◽  
1993 ◽  
Vol 13 (3) ◽  
pp. 308-322
Author(s):  
Mitchell C. Davies
Keyword(s):  
Criminal Law ◽  
House Of Lords ◽  
The Law ◽  
Definition Of ◽  
Specific Definition

The objectives of the Criminal Law Revision Committee when drafting the radical reforms proposed by the 1966 Theft Bill were described by a contemporary commentator2 as being: ‘. . . to do away with the more embarrassing and restrictive technicalities of the existing law . . .’In the same place it was observed that the Committee faced a choice between creating a specific definition of the various theft offences and their elements, or one whose generality would allow it to evolve to meet the challenges presented by ever more complex and sophisticated dishonest dealing.

Campus Sexual Assault: A Systematic Review of Prevalence Research From 2000 to 2015

2016 ◽  
Vol 19 (1) ◽  
pp. 76-93 ◽  
Author(s):  
Lisa Fedina ◽  
Jennifer Lynne Holmes ◽  
Bethany L. Backes
Keyword(s):  
Sexual Assault ◽  
Sexual Coercion ◽  
Sexual Victimization ◽  
The United States ◽  
Sexual Contact ◽  
College Campuses ◽  
Future Research ◽  
Campus Sexual Assault ◽  
Study Designs ◽  
Unwanted Sexual Contact

Sexual assault is a pervasive problem on university and college campuses in the United States that has garnered growing national attention, particularly in the past year. This is the first study to systematically review and synthesize prevalence findings from studies on campus sexual assault (CSA) published since 2000 ( n = 34). The range of prevalence findings for specific forms of sexual victimization on college campuses (i.e., forcible rape, unwanted sexual contact, incapacitated rape, sexual coercion, and studies’ broad definitions of CSA/rape) is provided, and methodological strengths and limitations in the empirical body of research on CSA are discussed. Prevalence findings, research design, methodology, sampling techniques, and measures, including the forms of sexual victimization measured, are presented and evaluated across studies. Findings suggest that unwanted sexual contact appears to be most prevalent on college campuses, including sexual coercion, followed by incapacitated rape, and completed or attempted forcible rape. Additionally, several studies measured broad constructs of sexual assault that typically include combined forms of college-based sexual victimization (i.e., forcible completed or attempted rape, unwanted sexual contact, and/or sexual coercion). Extensive variability exists within findings for each type of sexual victimization measured, including those that broadly measure sexual assault, which is largely explained by differences in sampling strategies and overall study designs as well as measures of sexual assault used in studies. Implications for findings and recommendations for future research on the prevalence of college-based sexual victimization are provided.

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