What is rape?

[moimeme]

Title 18 of the United States Code

Crimes and Criminal Procedure

PART I > CHAPTER 109A > Sec. 2242.

Whoever, in the special maritime and territorial jurisdiction of the United States or in a Federal prison, knowingly engages in sexual contact with another person without that other person's permission shall be fined under this title, imprisoned not more than six months, or both.

[Samson]

imprisoned not more than six months,

 

Huh?

[moimeme]

Yeah, I was kind of dismayed by that one, too.

[honey2005]

not more than 6 months?

[moimeme]

Criminal Code

PART VIII OFFENCES AGAINST THE PERSON AND REPUTATION

Assaults

Meaning of "consent" 273.1 (1) Subject to subsection (2) and subsection 265(3), "consent" means, for the purposes of sections 271, 272 and 273, the voluntary agreement of the complainant to engage in the sexual activity in question.

 

Where no consent obtained

(2) No consent is obtained, for the purposes of sections 271, 272 and 273,

271. Sexual assault

272. Sexual assault with a weapon, threats to a third party or causing bodily harm

273. Aggravated sexual assault

 

where

 

(a) the agreement is expressed by the words or conduct of a person other than the complainant;

 

(b) the complainant is incapable of consenting to the activity;

 

© the accused induces the complainant to engage in the activity by abusing a position of trust, power or authority;

 

(d) the complainant expresses, by words or conduct, a lack of agreement to engage in the activity; or

 

(e) the complainant, having consented to engage in sexual activity, expresses, by words or conduct, a lack of agreement to continue to engage in the activity.

 

Subsection (2) not limiting

(3) Nothing in subsection (2) shall be construed as limiting the circumstances in which no consent is obtained.

 

1992, c. 38, s. 1.

 

Criminal Code

PART VIII OFFENCES AGAINST THE PERSON AND REPUTATION

Assaults

Sexual assault

271. (1) Every one who commits a sexual assault is guilty of

 

(a) an indictable offence and is liable to imprisonment for a term not exceeding ten years; or

 

(b) an offence punishable on summary conviction and liable to imprisonment for a term not exceeding eighteen months.

 

(2) [Repealed, R.S., 1985, c. 19 (3rd Supp.), s. 10]

 

R.S., 1985, c. C-46, s. 271; R.S., 1985, c. 19 (3rd Supp.), s. 10; 1994, c. 44, s. 19.

 

At least we put 'em away for up to 18 months.

[honey2005]

better than "no more than 6":(

[sinner]

Whoever, in the special maritime and territorial jurisdiction of the United States or in a Federal prison, knowingly -

(1) causes another person to engage in a sexual act by threatening or placing that other person in fear (other than by threatening or placing that other person in fear that any person will be subjected to death, serious bodily injury, or kidnapping); or

(2) engages in a sexual act with another person if that other person is -

(A) incapable of appraising the nature of the conduct; or

(B) physically incapable of declining participation in, or communicating unwillingness to engage in, that sexual act;

or attempts to do so, shall be fined under this title, imprisoned for not more than 20 years, or both.

 

I believe this is the current federal criminal statute regarding sexual abuse at 18 USC Sec. 2242. Also "sexual act" is defined broadly as:

 

(2) the term "sexual act" means -

(A) contact between the penis and the vulva or the penis and the anus, and for purpose of this subparagraph contact involving the penis occurs upon penetration, however slight;

(B) contact between the mouth and the penis, the mouth and the vulva, or the mouth and the anus;

© the penetration, however slight, of the anal or genital opening of another by a hand or finger or by any object, with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person; or

(D) the intentional touching, not through the clothing, of the genitalia of another person who has not attained the age of 16 years with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person;

 

18 USC Sec. 2246(2)

 

Imprisonment is for upwards of 20 years. Not 6 months.

[honey2005]

Yay that's alot better than 6 months.

[moimeme]

Um. That's the part of 2242 that refers to people physically or otherwise incapable of consent and the penalties are much stricter.

 

Read again:

 

Sec. 2242. - Sexual abuse

Whoever, in the special maritime and territorial jurisdiction of the United States or in a Federal prison, knowingly -

(1) causes another person to engage in a sexual act by threatening or placing that other person in fear (other than by threatening or placing that other person in fear that any person will be subjected to death, serious bodily injury, or kidnapping); or

(2) engages in a sexual act with another person if that other person is -

 

(A) incapable of appraising the nature of the conduct; or

 

(B) physically incapable of declining participation in, or communicating unwillingness to engage in, that sexual act; or attempts to do so, shall be fined under this title, imprisoned not more than 20 years, or both

The section I quoted refers to people [color=red]not[/color] physically or otherwise incapable of consent.

 

That is, unless that 'or attempts to do so' doesn't, but if it doesn't, it's not at all clear.

[Craig]

Moimeme, in Canada some Criminal Offenses are what they call "dual procedure offenses" and can proceed by either indictment or summary conviction similar to felony or misdemeanor in the U.S. In Canada rape is a dual procedure offense. If the Crown Counsel elects to proceed by indictment regarding the charge of rape the maximum sentence is "for a term not exceeding ten years."

 

In the U.S. the individual states have Penal Codes that set out a range of penalties.

 

For example in California the penalty for rape according to Section 264. (a) of the Penal Code "is punishable by

imprisonment in the state prison for three, six, or eight years."

 

California's Penal Code also has a rather lengthy definition of the type of rape that is attached to the above penalty and can be found at http://www.leginfo.ca.gov/cgi-bin/waisgate?WAISdocID=94984414720+8+0+0&WAISaction=retrieve

 

And of course there are other types of rape defined in the California Penal Code.

 

 

Regarding Title 18, Section 2242 of the US Code found at http://www4.law.cornell.edu/uscode/18/2242.html

 

Sec. 2242. - Sexual abuse

 

Whoever, in the special maritime and territorial jurisdiction of the United States or in a Federal prison, knowingly -

 

(1)

 

causes another person to engage in a sexual act by threatening or placing that other person in

fear (other than by threatening or placing that other person in fear that any person will be subjected

to death, serious bodily injury, or kidnapping); or

 

(2)

 

engages in a sexual act with another person if that other person is -

 

(A)

 

incapable of appraising the nature of the conduct; or

 

(B)

 

physically incapable of declining participation in, or communicating unwillingness to engage

in, that sexual act; or attempts to do so, shall be fined under this title, imprisoned not more

than 20 years, or both

[moimeme]

That's the same source I used. OK, explain 2B

 

physically incapable of declining participation in, or communicating unwillingness to engage

in, that sexual act; or attempts to do so,

 

Does 'attempts to do so' refer to all of the preceding stuff or is it all by itself? I read that as 'physically incapable of attempts to do so' (i.e. that the person can't decline or even try to decline). And if that's the case, doesn't this whole section refer to people who can't say no rather than people who do say no? I'm only seeing that 20 years is the penalty if the victim is threatened or incapable of refusing. Noplace here does it look like it refers to a person who does say no.

[Craig]

Moimeme, "or attempts to do so," refers to all of the preceding stuff.

 

You seem to be correct in that rape law in the US Code does not refer to a person who does say no.

 

Even more disturbing is that the US Code (not individual state law) *permits* the use of non physical coercion to force sex. Ann T. Spence states in the COLUMBIA JOURNAL OF LAW AND SOCIAL PROBLEMS Vol. 37, No. 1, Fall 2003 that "heretofore, expanding the definition of rape in order to prohibit non-physical force has been challenged as unworkable, potentially criminalizing too much behavior in pursuit of sex." http://www.columbia.edu/cu/jlsp/html/body_volume_37_issue_1.html

 

I'm not a lawyer but it appears that at least some State laws address the issue of "no" meaning no. California's Penal Code Section 261. (a) Rape is an act of sexual intercourse accomplished with a person not the spouse of the perpetrator, under any of the following circumstances: Subsection (2) goes on to state "Where it is accomplished against a person's will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the person or another." I read that to mean that if a person says "no" and the offender engages in sexual intercourse with them then that would be considered rape.

[moimeme]

You seem to be correct in that rape law in the US Code does not refer to a person who does say no.

 

That's what I thought. The part I quoted in my first post refers to 'sexual contact' and they will penalize you for that if you do it without permission! So unless they extend that to mean intercourse, it appears the law is lacking.

 

I read that to mean that if a person says "no" and the offender engages in sexual intercourse with them then that would be considered rape.

 

Yes, but again, it seems it has to be proven that 'force, duress, menace, or fear of harm' existed!

[amerikajin]

Federal law doesn't address some forms of criminal conduct, due in large part because States have what's referred to as "police power" under the Constitution. Laws affecting the health, safety and morality of its citizens are powers reserved to the States and, as such, have historically not received as much attention under the United States Code.

 

In recent years, however, we've seen an ever-growing expansion of federal police power, which gives criminal laws some degree of redundancy. It has been welcomed by some of the conservatives who want to get tough on crime, but it has also worried States rights activists who are fiercely protective of their rights to establish laws and punish people pursuit to those statutes.