UK – Assange case: How is rape defined?

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Warning: This piece contains explicit sexual detail

George Galloway sparked outrage with his comments on the Julian Assange sexual assault allegations, but does the definition of rape vary significantly from country to country?

The MP for Bradford West said the allegations against Julian Assange, even if true, “don’t constitute rape”.

The idea that the allegations in Sweden against the Wikileaks founder do not constitute rape under English law has been debunked by a number of writers.

Here we break down definitions in the law from England and Wales, the legal system from which Assange would be extradited, and Sweden, where he faces the allegations.

Also included for purposes of comparison are Scotland, with its separate legal system, and Germany.

Sweden England and Wales Scotland Germany
What is the legal definition of rape?
Forced vaginal intercourse or a comparable sexual act, which is carried out by assault or threat of violence. Sexual Offences Act 2003 says defendant is guilty if he intentionally penetrates the vagina, anus or mouth of the complainant with his penis, the complainant does not consent and the defendant does not reasonably believe consent has been given. The separate offence of sexual assault by penetration, which carries the same maximum sentence, covers attacks involving other objects. Sexual Offences (Scotland) Act 2009 says rape occurs when person A penetrates person B’s mouth, vagina or anus with A’s penis, either intentionally or recklessly, without B’s consent or a reasonable belief it exists. An attack involving an object falls under the offence of sexual assault by penetration. Forced sexual intercourse or any invasive sexual penetration. Penetration need not be carried out with a body part – it may be with an object.

How is consent understood?

Determined by whether force or threat of force was used. Unlike Germany, helplessness of the victim – where there is no force used – means it can still be rape. Consent exists where someone “agrees by choice, and has the freedom and capacity to make that choice“. However, criminal barrister Felicity Gerry, author of the Sexual Offences Handbook, says: “If someone has a reasonable and genuine belief their partner gave consent they shouldn’t be convicted.” “It’s defined as free agreement,” says law professor James Chalmers, of the University of Glasgow. Circumstances in which free agreement is absent include where violence is threatened or impersonation is being used. Scottish law has been criticised by anti-rape campaigners because it currently requires corroboration – meaning no-one can be convicted without two independent sources of evidence to support crucial facts – although Scottish ministers want to abolish this. Determined by whether victim was threatened. It is necessary to prove force was used, or sex carried out under threat of imminent danger to life or limb, or the accused exploited a situation in which victim was unprotected and at their mercy.

What is meant by incapacity?

Having sex with someone by improperly exploiting them while they are unconscious is rape, under Swedish law. This may be due to unconsciousness, sleep, intoxication or other drug influence, illness, injury or mental disturbance – or otherwise in a helpless state. “Practically speaking, if someone is so drunk that they are incapable of making a choice then that is rape,” says Gerry. “Evidential presumptions” of what renders someone incapable of consent include the complainant being asleep, under threat of violence or having a disability which prevents them from communicating. Mentally disordered persons are considered incapable of consent if they are unable to understand what the conduct is, make a decision about it or communicate their decision. A person is “incapable, while asleep or unconscious, of consenting to any conduct“. Nor can they be considered to have given free agreement if the jury decides they were incapable due to the effect of drink or drugs. Sleeping and unconscious people are not covered by the term rape, says Durham University law professor Michael Bohlander. This is covered by another offence – abuse of persons unable to resist – under Section 179 of the German criminal code. It says people who are physically incapable, have a mental disability or a “profound consciousness disorder” can be viewed as having been assaulted without evidence of force. The latter category of charge may cover people who are asleep, Bohlander says.

Can a woman be charged with rape?

Perpetrator can be male or female Act uses prefix “he” and defines rape as involving penetration by a penis. But women who facilitate gang rapes can be – and have been – prosecuted for rape, says Gerry. A woman could also be charged with an offence carrying an equivalent penalty such as sexual assault by penetration. Gender-specific prefixes are not used – although Scottish law specifies that penetration involves a penis. Chalmers says a woman who was an accessory to rape would be charged with the full crime. Otherwise she could be charged with sexual assault, which carries the same maximum sentence. Perpetrator can be male or female

Spousal rape

Outlawed in 1965 Exemption abolished after R v R case appealed to House of Lords in 1991. Exemption abolished by Scottish courts in 1988 – law eroded during series of cases in the early 1980s. Outlawed in 1997

What is the maximum penalty?

Two to six years in prison, or four to 10 years for “gross rape” – depending on level of violence and whether more than one person assaulted the victim. Life imprisonment. Life imprisonment. Two to 15 years in prison.

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