last updated 10 February 2009
National sexual assault laws vary considerably based on cultural attitudes toward sexual assault and resulting legislative advances. Sexual assault is a phenomenon that is not specific to any culture, ethnicity or state: “[R]ape and sexual violence…are universal, cutting across State borders and cultures, used in all countries and all cultures as weapons of degradation and terror against women.” (UN Special Rapporteur, Section III. Para. 18). Internationally, public awareness is beginning to focus on the issue of sexual assault as well as difficulties with present approaches to sexual assault law.
Generally speaking, sexual assault and rape are underreported crimes with low conviction rates. Victims underreport rapes for several reasons: they are too ashamed to discuss rape with a stranger; they may not want family and friends to find out about the assault; they fear they will not be believed, which is enforced by the societal presumption that the victim deserved it or is lying; they fear they will be faced with hostile police officers, prosecutors and judges; they desire to hide something in their past (drug use or promiscuity); or they fear facing their attacker. Acquaintance rape is the most frequent rape to go unreported. In addition to the aforementioned concerns, acquaintance rape victims may want to maintain a relationship with their rapist. Also, societal attitudes foster the idea that acquaintance rape is not real rape and that the victim most likely consented.
In addition to underreporting, low conviction rates indicate problems with sexual assault laws. Low conviction rates themselves often dissuade prosecutors from prosecuting rape cases. Also, prosecutors are concerned with difficulties of proving their case. Often in rape cases, there is no evidence other than the victim’s own statement. In addition, prosecutors are concerned with society’s attitude toward rape victims, which often presents itself in the jury. For example, juries are more likely to convict a stranger rape than a non-stranger rape; in non-stranger rape situations, the jury is more likely to believe the victim consented. Inter-spousal immunity doctrines, which prevent a husband from being held accountable for raping his wife, are another challenge for prosecutors.
Sexual assault law reforms in many nations focus on remedying underreporting and low conviction rates. Specifically, nations are redrafting rape laws to define the crime in such a way that the victim’s behavior is not at issue; rather the perpetrator’s failure to get express consent for the sexual contact defines a sexual assault. Definitions also criminalize all different kinds of rape, including oral and anal rape and acquaintance rape. Further, some reforms are aimed at correcting difficult evidentiary concerns that prevent conviction. Finally, many laws are aimed at protecting the victim from re-victimization at the hands of the justice system and combating cultural norms that blame the victim for the sexual assault. For instance, rape shield laws that prevent the defense from putting the victim’s sexual history on trial. Some nations are beginning to mandate training programs for officials who are involved in sexual assault investigation and prosecution. These training programs are intended to train officials in how to respect and protect a victim of sexual assault as well as how to prepare the most bullet-proof case against the suspect.
In the United States, laws are beginning to fine tune reforms, analyzing the effects of new laws and recommending how to improve laws to better achieve their purpose. In the CEE/FSU region, states are just beginning to recognize the detrimental effect the laws and players in the justice system are having on correcting and preventing sexual assault. Other nations are also coming up with innovative ways to improve reporting and conviction for sexual assaults and sexual assault prevention. A United Nations expert group released model domestic violence legislation in May 2008 entitled "Good practices in legislation on violence against women", which includes defining sexual assault laws in Section 4.C. For the Russian version of the recommendations to "Good practices in legislation on violence against women, click here.
Correcting these shortcomings will restore faith in the criminal justice system, thus encouraging victims to report sexual assaults. Improving conviction rates will again instill confidence in the victim that the criminal justice system will be able to protect them from their abuser as well as serve as a deterrent to potential criminals. Conviction is also important to incapacitating the rapist and preventing them from raping again.
Compiled from: David P. Bryden, Redefining Rape, 3 Buff. Crim. Rev. 317 (2000).
David P. Bryden and Sonja Lengnick, Criminal Law: Rape in the Criminal Justice System, 87 J. Crim L. & Criminology 1194 (Summer 1997).
Julie Goldscheid, The Civil Rights Remedy of the 1994 Violence Against Women Act: Struck Down but not Ruled Out, 39 Fam. L.Q. 157 (Spring 2005).
Dean Kilpatrick, Rape and Sexual Assault, National Violence Against Women Prevention Research Center, http://www.nvaw.org/research/sa.shtml (2000).