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Friday, 21 December, 2001, 21:01 GMT
How do we define rape?
A panel of seven judges in Scotland is to examine whether sex without a woman's consent actually constitutes rape.

The move follows the controversial acquittal of a Scottish law student last March, when the judge dismissed the case because he said there was no evidence of force against the alleged victim.

The judge said for a charge of rape to be proved there had to be evidence of force or the threat of it being used.

It was a ruling which drew fierce criticism from women's groups and some MSPs.

How can we define rape? Are judges the right people to decide?

This debate is now closed. Read your comments below.

Your reaction:

Rape does not have to be carried out violently to be an act of violence. A man forced himself on me when I was young and naive. I didn't try and fight him off because I was frozen with fear. The violence is the act of violation not the force with which the act was carried out. It is absurd to suggest that a victim must fight back in order for it to be considered rape. There are situations in which doing so would be to endanger your own life.
Anon, UK

The test is whether the woman's will was overcome

Pamela, Scotland
The main problem with the Scottish law on rape is that it is totally misunderstood. Consent has nothing to do with rape here. The test is whether the woman's will was overcome, which is not the same as not consenting. A sleeping woman cannot be raped in Scotland, as she has no will to overcome, but can be in England where consent is the issue.
Pamela, Scotland

I find it really hard to believe that a man, let alone a court judge would find it necessary to debate the act and definition of rape, it's right there in the dictionary, by golly.
Mark Alan Whittle, Hamilton, Ontario, Canada

Sex without consent is rape - otherwise drugging a person for sex becomes legal. Rape isn't just the use of the word 'no', it is the absence of the word 'yes'. Men proceed with caution!
Kelvin, UK

Anti-rape campaigners tell us that rape is, first and foremost, a crime of violence. Without a violent element (real or threatened), the key point in the definition of rape is missing. Such an act should be prosecuted as indecent assault rather than rape and a lesser sentence imposed.
Colin Wilson, Scotland

The current provisions are obviously flawed

Lorna Ronald, Scotland
The current definition of rape has evolved over generations, stemming from when it was a capital offence. Judges cannot choose to ignore common law precedent as such a power would lead to an unacceptable lack of clarity in the law. A solution to the problem would be legislation by Holyrood, containing suitable definitions and penalties. Thus while the current provisions are obviously flawed, we mustn't criticise the judicial system for being unable to apply dated rules in our modern society.
Lorna Ronald, Scotland

May I point out that the consequences of rape for the victim, whether of date rape, child rape, stranger rape and whether or not they are male or female, are the same? You have the same pain, fear, humiliation and self loathing, quite apart from any physical injuries with which to deal. Rape is Rape, and no means no.
Meg, UK

This is a peculiarly Scottish problem. Scots law used to punish rape with the death penalty. With such a penalty the courts had to be assured that the perpetrator of the crime was left under no illusions that this was against the victim's physical will, hence the need for evidence of violence. The punishment for rape is no longer death and so we are correct to review the criteria for rape.
Gerry, Scotland

Rape is just a sub-set of sexual assault

Paul Gough, UK
Why have the offence of rape? Sexual assault carries an equally heavy penalty and covers a much wider area. Rape is just a sub-set of sexual assault. Get rid of rape and charge people with sexual assault then leave it up to the judge to give a sentence commensurate with the specific circumstances.
Paul Gough, UK

What is all this talk of sex? Rape is about power and humiliation. Sex is part of a loving relationship between consenting couples. When "rape" occurs, there is no relationship, just a perpetrator and a victim. This concept, simple without being simplistic, must be so obvious and boring, that one judge even fell asleep during a recent rape case whilst listening to the summing up of the defence case. Let's all hope that the judges who are debating what seems to most of us a simple idea can stay awake long enough to remember why they are there.
Jack, UK

The law is abundantly clear on what constitutes rape

Professor Mukhtar Ali Naqvi, USA
The law is abundantly clear on what constitutes rape. In addition to legislative law there is a plethora of case law on it. Rape is intercourse without consent. If consent has been obtained by force or show of force or deceit the definition of rape will apply to it. The relevant law is already comprehensive and any consideration by the panel of judges will be a waste of time.
Professor Mukhtar Ali Naqvi, USA

I think it's a good idea to seek a clearer definition of rape. It's also a good idea to tackle why it is that there are so many vicious people committing this crime.

What the judge says is correct. If there is no evidence how is he/she supposed to decide whether it was a rape or not? A judge is there to decide on evidence presented and not on some emotional and arbitrary arguments. If the victim is a minor then I agree that irrespective of the evidence the accused should be punished.
Vijay Rajanala, USA

Simply presence or absence of elements of consent is not enough. Force is a major contributory factor to define the charge of rape. Simply saying 'No' while all other elements of consents are present must not be considered a viable charge for rape even though rape has been committed with somewhat mutual consents of the parties involved.
Habib Hemani, USA

I think that there should not be a single crime under the definition of rape

Richard Chubb, UK
I think that there should not be a single crime under the definition of rape. Instead there should be a split similar to murder and manslaughter. While any non consensual sex is wrong and should be punished, I can't agree that someone who takes things too far at the end of a drunken night out is the same type of monster as those taking part in a violent stranger rape. Both are wrong but merit different punishments
Richard Chubb, UK

Most people on this message board are missing the point - it is not the dictionary definition of rape that is under question. Everybody can agree that rape is a sexual act committed without consent, but the legal definition is quite tricky. How do you prove consent or lack thereof in a court of law? Is my word against yours, good enough? I don't think so.
Tariq, Canada

"No" (at any time during sex) should mean precisely that. I agree completely with Janet above that the majority of judges deciding on this issue should be female. It's about time that old white men stop deciding on issues that they can not possibly comprehend.
Rustam Roy, England

The problem lies not so much with the definition, which anyone with a grain of sense can understand. The problem is more with determining the truth of the accusation in court. Very few rapes having witnesses, it's commonly going to come down to his word against hers... I have no doubt that the vast majority of rape accusations are genuine, but we must be aware that any changes to the law that make it easier to prove rape in the absence of physical evidence will also make it easier to falsely accuse and convict...
Eric Dixon, UK

A rape doesn't always have to involve always force

Roula, UK
A rape doesn't always have to involve force. It depends on the circumstances, the age of the person, personality, etc. Hence, a judge has to be very careful and open-minded when considering such cases.
Roula, UK

Whatever definition is reached, the panel should consist of at least five female judges.
Janet, UK

My question to Janet would have to be, why do female judges matter? Rape is not a crime committed solely against women, in fact the statistics hide the true figures as more male rape victims fail to report the crime than female victims. Men get raped too Janet.
Will Faulkner, Hale, Cheshire, UK

In my view rape is sex without either person's consent - either verbal or implied - from the start. However if they consented (or did not say "no") and then changed their mind during sex, it should not be classed as rape. In addition, I do feel that the identity of both the victim and the accused should not be released until after the trial.
Caron, England

Quite simple really - it is when a person engages in sex with another person who has not willingly consented to it. The key word being willingly. People may consent to sex in order to avoid physical injury but this is still rape as far as any decent moral person is concerned. This definition applies to men and women.
Roger, UK

Rape: Having sex with someone without consent. "No means No". I can not believe they are going to re-think this! What next? Re-think what constitutes murder? I agree that the judges should be female and that rape should stand for both men and women but i think the definition is pretty clear in itself already.
Sharon B, UK

Many victims are raped by friends or family members

Karen Wright, Scotland
Rape is - sex when consent has not been sought or given - this does not necessarily require violence to be present - Many victims are raped by friends or family members - not the 'unknown stranger' scenario. In these circumstances disbelief or fear can prevent the victim from taking action and in many circumstances even if action were taken, the circumstances of where where/how it occurred may result in it being one persons word against the others. In a male dominated judiciary, many women feel they cannot receive justice - the statistics for reported cases of rape and the conviction rate which are thought to be considerably less than the occurrences seems to bear this out.
Karen Wright, Scotland

Force, or the threat of force, is not necessarily an element of rape. Rape should be defined as the commission of a sexual act with another individual against that individual's will. This demands that the victim actively demonstrates non-consent, whether by verbal or physical means. Silence on the victim's part, while not necessarily tantamount to approval, is certainly not a viable expression of non-consent. This definition assumes that the victim maintains throughout the course of events the ability to express non-consent. Any actions taken by the perpetrator to limit the victim's ability to decline the unwanted sexual activity or to foment unwilling consent, such as the use of chemical substances or the exhibition of force, must be taken into account, and may render a ruling of rape viable, even without the manifestation of resistance.
Andrew, Germany

Under UK law, the accused is always innocent until proven guilty. How does one prove rape ?
Blewyn, UK

The only way you can define rape is to have a law of sex after marriage

Razas, Canada
Well that is the problem with western civilisations . There is no way you can define rape if you have sex before marriage. Because how you will prove that someone was willing to do it or not? What if someone does it and then says that she or he said no to it? The only way you can define rape is to have a law of sex after marriage.
Razas, Canada

According to Razas, the only way to solve this problem is to ban sex before marriage altogether. However, this wouldn't be much use in cases of marital rape. But perhaps in his view, married women just the possessions of their husbands, without any right to refuse his sexual advances? Let's be honest about this - western society may have plenty of imperfections and weaknesses, but rape (and even pre-marital sex) is a universal problem shared by all societies.
Jane, UK

Razas, the sexual repression and backwardness that that would cause would probably cause more pain and suffering than every rape case put together.
James Pittman, England

Cannot men also be forced into a degrading act?

Roger, UK, is right. Consent under duress isn't consent. Why should Janet think the majority of the judges should be female? Cannot men also be forced into a degrading act?

Under this ill-thought out ruling it would mean that a woman could be drugged and a man could have sex with her without her consent and get away with it just because she didn't put up a fight. The judge who made his ruling should be ashamed of himself and should resign for his poorly thought out bumbling. The current ruling of consent-based sexual intercourse is the correct way to proceed!
James Ross, UK

If a woman - or man or child - is held down forcibly, or has been drugged, then there will be no proof of a struggle. If the arms can not move there will be no scratches on the perpetrator. If the legs are pinned or numb there will be no bruises from kicking. If the victim is unable to put up a fight then his or her clothing will not be torn. If you don't define rape as "sex without consent", then what exactly is it?
Jennifer Ethington, USA

The problem arises in the cases where you have one word against another, i.e. most rapes do not happen in front of many witnesses. Also when someone changes one's mind - I don't think that it is OK to continue having sex in this case (like Caron, England). Do you continue having sex with your partner at home when he/she changes her mind halfway through? No, you don't. What about male rape victims? Should the panel of judges still consist of five female judges (Janet, UK)? Think again. If only everything was at easy as it first looks, eh?
Volker, England (ex Germany)

Consent given under duress is also rape

John, UK
Rape is sex without consent. Consent given under duress is also rape. The identity of both parties should remain anonymous until after the trial. The name of the accused only being released once a guilty verdict has been reached.
John, UK

A rape is when the other party is not a sex partner, but a victim.
Agha Ata, USA

When I was a trainee police constable it was taught that rape was the easiest offence to allege, the hardest to prove and even harder to disprove. Unfortunately the very word rape has attracted connotations in the public view that are at variance with reality. It is easy to define rape on a complete stranger who is dragged into bushes and sexually assaulted. It is much harder to define it when two drunken people end up in bed together, by mutual consent, and the hormones take over. I still believe that the Old English definition of 'Fear, Force or Fraud, against their will,' covers the offence quite adequately, what is necessary is to avoid the fixed penalties demanded by some activist groups.
Barry P, England

Would it be rape if the man changed his mind but the woman insisted?

Gary, UK
The definition of rape as defined in the dictionary is as follows: 'The offence of forcing a woman to submit to sexual intercourse against her will'. Therefore if a woman consented to sex and part way through changed her mind, it becomes rape if the man continues. It is interesting that this is not seen from a male point of view. For instance, would it be rape if the man changed his mind but the woman insisted? If he continued under duress then by definition he is being raped. It seems to me it is the definition of force that is in question.
Gary, UK

If a woman gets a man drunk, or drugs him, and then has sex with him without his full consent, has she raped him? If a man does the same to a woman, has he raped her? Should the rapist (whether male or female) in such a scenario suffer the same sentence as a man who violently attacks and rapes a woman at knifepoint? What about homosexual rape - man on man, or woman on woman? What about so-called "date-rape"?. These are hugely difficult questions, and I don't pretend to know the answers, but surely there is no "black and white" definition of rape.
John, UK

Rape is sex with a person, male or female, who has not freely consented. It's not difficult to understand! Using physical force or threats (whether verbal or through aggressive body language) to have sex with someone is rape. Having sex with someone who is unconscious from drink or drugs is rape. Any man who can't tell the difference between a willing and an unwilling sexual partner must be brain dead.
Michael Entill

Many women need to grasp the fact that they must take responsibility for their own actions - from my understanding of men, you can't just switch male sexual emotions on and off at a whim. Many women like to play games - which I suppose is their right, however what is their equivalent responsibility in the matter? And how many women actually see that they have any responsibility regarding this at all?
Morris, UK

Morris UK: Can you tell me that a child plays games to entice a male or female to switch on or off their sexual emotions? A child would not know how to. A rapist can get their sexual urges from conflicting pain and any other fantasy. I as a child never ask to be raped by my father so did I turn his sexual emotion 'on' ? THINK AGAIN.
Jacque Cerullo, New Zealand

As for women taking responsibility for their actions, obviously we should all take responsibility for our actions in all matters. However, some of what is posted is apologist rationalisation for rape. Are you, Morris, truly suggesting that your gender is so un-evolved as human beings that if you become sexually excited that your gender CANNOT control yourselves? That is utter rubbish! The vast majority of men can and do control themselves thank goodness.
Lauren M Lynley, US

Very difficult to judge what is rape and what is seduction.
Roger Sayer, USA

Rodger - in regards to your comment "Very difficult to judge what is rape and what is seduction" - thank God I never dated you! I hope your next date has taken karate. Just how many teeth have you got left? Or is it hard to tell foreplay from forced dentistry?
Kathy Willsea, USA

The blanket use of the term 'rape' is unhelpful. What should be done is to reclassify offences so that all sex not involving freely given consent should be classified as offences, but with heavier penalties if force is involved. Then there is the tricky situation of stranger rape versus acquaintance or date rape. Acquaintance rape and date rape are not the same thing, obviously. Then there is the issue of male rape. Men's reactions to being raped against their will is very similar to women's reactions to being raped. However, there are crucial differences between male and female rape: academic studies show that victims of male rape are more likely to have also been victims of rape or sexual assaults previously when under the age of 16. This implies some sort of acquaintance between perpetrator and victim, either individually or through a network of people. In other words, boy victims of paedophiles may become adult victims of male (homosexual) rape. Nobody seems to want to address this question because it is politically incorrect, yet this is what the research data from the UK and the US suggests.
Candide, UK

First, both parties must be of legal age and of proper capacity to decide, free from any duress. Second, the female ought to explicitly express consent. Males ought to be the ones responsible for proving it was NOT rape, rather than otherwise.
Jeff L., New York City

The current definition of rape is just fine and should be left alone

Alsion, UK
I cannot believe Morris is trotting out that tired old rubbish about men being carried away by their urges and therefore unable to stop. Show me a man who keeps on coming at you when you have a machine gun pointed at his head, and I'll believe in his uncontrollable urge to have sex. The current definition of rape is just fine and should be left alone. As for game playing, men mastered the game of coercion disguised as charm/flattery/sulking in the face of refusal etc. many eons ago, and seldom face physical injury and long term psychological trauma if their "game" is not recognised as such by the other, supposedly adult, party.
Alison , UK

No crime is monolithic: the use of force, deception, drugs, stalking or abuse of power should be separate charges in addition to that of non-consensual sex. This is a complex subject and the current simplified rules just will not do.
Brendan Fernandes, UK

Morris, UK, I am in complete, utter agreement. Everybody should take responsibility for him/herself. According to some definitions, I have been 'raped' when I was at university. I had drunk too much and felt slightly out of my depth and not able to say 'no'. And I didn't try to, but disliked the experience completely. A week later I had (almost) forgotten about it. I never EVER would have called myself a 'victim'. And hey, I was also mugged once (and suffered a broken nose and cheekbone) and I know which was worse. I was a victim then, and it took a hell of lot longer than a week to forget.
Penny Lloyd, UK

See also:

18 Dec 01 | Scotland
Judges examine rape ruling
25 Apr 01 | Scotland
Rape law clarification sought
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