Monday 12 September 2011

Emedinews:Insights on Medicolegal issues:What constitute a legal rape?

• The necessary and required constituents for law to charge a person in offence of rape, is penetration/touching of penis within vulva (leaps of vagina) however slight/little it may be, or even this act may be only for a fraction of second is sufficient to constitute the offence of rape. Neither complete penetration of male genital organ nor rupture of hymen nor complete sexual act or emission of seminal fluid are necessary to amount to rape. Lack of consent is a necessary element in every rape. But this does not mean that a person may make sexual contact with a minor or incapacitated person who actually consented. Lack of consent may result from either forcible compulsion by the perpetrator or incapacity to consent on the part of the victim. Persons who are physically or mentally helpless or who are under a certain age in relation to the perpetrator are deemed legally incapable of consenting to sex. In America, rape or sexual assault is divided into degrees: First-, second-, third-, and fourth-degree sexual assault.

• West Virginia provides an illustration of how rape laws are typically written. In West Virginia, a person is guilty of sexual assault in the first degree when that person engages in sexual intercourse or sexual intrusion with another person and either inflicts serious bodily injury upon anyone or employs a deadly weapon in the commission of the act. Imprisonment for at least 15 years and not more than 35 years and may be fined from $1,000 to $10,000.

• The second degree of rape is sexual intrusion with another person without that person's consent, and the lack of consent results from forcible compulsion means physical force that overcomes such earnest resistance as might reasonably be expected under the circumstances; or threat or intimidation, either express or implied, placing the victim or another person in fear of death, bodily injury, or kidnapping or fear by a person under 16 years of age caused by intimidation by another person who is at least four years older than the victim.. The punishment for second-degree sexual assault is imprisonment for at least ten years but not more than 25 years and may include a fine of from $1,000 to $10,000.

• The Third-degree sexual assault is committed when a person engages in sexual intercourse or sexual intrusion with mentally defective or mentally incapacitated, or when a person age 16 years or older has sex with a person who is less than 16 years old and is at least four years younger than the defendant. Third-degree sexual assault is punishable in West Virginia by at least one, but no more than five, years in prison and may include a fine of not more than $10,000.

(Ref: Bachman, Ronet, and Raymond Paternoster. 1993. A Contemporary Look at the Effects of Rape Law Reform: How Far Have We Really Come? Journal of Criminal Law and Criminology ).

(Contributed by Dr Sudhir Gupta)


No comments:

Post a Comment