Rape is not committed where a woman consents to an act of sexual intercourse with a man; the essence of the crime is thus that the complainant had not consented to the sexual intercourse which took place. Physical resistance on the part of the woman very obviously indicates an absence of consent on her part. However, the essence of the offence is that sexual intercourse should have occurred without consent, whether the lack of consent as due to fear, force or fraud or incapacity to consent.
The inclusion of an absence of consent in the definition of rape stands in
marked contrast to the common law position relating to assault, where proof of non-consent is not required before the accused can be held criminally liable.
All though consent is a ground of justification that proves unlawfullness which means theres criminal liability. But consent is not one of the essential elements that the prosecution have to prove beyond doubt.
So really what you are saying
think rape should just be forcible PENILE penetration against the victims conscent
With the conscent part included you put a difficult burden of proving a negative proposition which is
that the complainant had not consented to sexual intercourse
It looks plain and simple but you shift the enquiry from the behaviour of the accused to that of the victim basically. That means you open up a whole new set of loopholes defense attorneys can use. Her nonconsent,
not his compulsion is in issue now. Secondly, the issue of consent open up new questions about the victims sexual history or allegations of promiscuity. It is this emphasis on the victim actions which puts the complainant on trial as well as the accused.
For me this definition will do better in court
If a man so intimidates a woman as to induce her to abandon resistance and submit to intercourse to which she is unwilling, he commits the crime of rape.
The definition might be simple but theres about 200 things that spin off it. Like age, mental illness, intoxication etc etc which influence consent.
I think law makers should ask the following
What constitutes sexual intercourse?
Should rape be gender neutral (in other words should non-consensual homosexual intercourse be regarded as rape)?
Is there a need for the presumption that a girl under the age of 12 years is incapable of consenting to sexual intercourse?
Should the presumption be extended to boys under the age of 12 years ?
Should the insertion of objects other than a penis into the vagina of another person be included in the definition of rape?
Do not forget that Indecent assault is when a man get sexually assaulted. In my country at least.
I think there should be a destinction between penetrative and non penetrative offences/crimes.
Reason for that is for example. penetration of the penis into the mouth of the victim must not be seen as rape as this will diminish the present public and legal opinion on rape which is seen as an act of violence and deserves a higher sentence. So whats going to happen is that all these objects and methods that is included in rape will bring down the sentence for rape. So your basically degrading the seriousness of a offense.
In my country we have crimes devided into Schedules which basically helps state the seriousness of a crime.
Theft, Housebreaking, assault are schedule 3 crimes. Armed robbery with 1 assailant is schedule 5. Attempted murder as well. Armed robbery more than 1 person commiting the act, rape and murder are schedule 6 crimes.
Now Schedule 5 crimes state that the accused can be given bail unless the State got a good reason to keep him in like other oustanding cases he's currently involved in where voilence is involve or there warrants out etc etc.
Schedule 6 states that bail will be denied unless the accused can give a reason why he must be outside. Those reason include serious illness, his dying of HIV etc etc.
Now indecent assault charges are schedule 4 and 5. Now they are dragging the schedule 6 crime down to 4 or 5. So serious rape cases bail will be granted which should not have happened.
So using a single offence to cover all types of sexual assault would simplify the law but there are two problems that will pop up .
1.The issue of penalty is a very important aspect of criminal law. A single, all-embracing offence would reduce legislative guidance for presiding officers in relation to sentencing.
2. It would be wrong in principle for the legislature not to distinguish one type of sexual interference from another.
Remember rape is a Common law. We know without reading anywhere that its wrong. Its common knowledge. Throwing in other aspects methods objects gender etc you are turning it into a Statutory Crime.
Then sexual inter course. What do we define as sexual intercourse? The slightest penetration will do and that blood and semen are not necessary to prove rape.
I think the common law definition of rape should be retained. Other sexual crimes like sodomy and indecent assault are all well defined crimes. Accordingly if these crimes are called another name it will create confusion.