Rape

Defining the concept of rape is as complex as defining the crime itself. There are legal, clinical, moral, and political definitions of rape and sexual assault, and each jurisdiction varies in its classification of the offense. Although the law may be local, the incidence of rape is universal. Rape affects every socioeconomic and racial group and is not limited to assaults on women; men are victims too. Much research has been conducted to develop profiles of both the victims and the perpetrators of rape, but because of the complexities of the crime, those profiles provide only limited insight. With increased attention to rape prosecution and victim services in the late twentieth and early twenty-first centuries, standardized procedures for evidence gathering, victim examination, and postrape victim assistance have been developed in most jurisdictions. Though states and localities have revised investigative measures and more services are available for victims of rape, there are still legal and cultural obstacles to the prosecution of rape crimes.

DEFINING RAPE

The researchers John O. Savino and Brent E. Turvey (2005) identify four categories of rape: legal, clinical, moral, and political. These broad divisions allow the inclusion of differing perspectives on how the American culture addresses this crime. The legal definition of rape is specific to each jurisdiction and is based on the local penal code, with the assistance of the courts. Broadly, rape is a criminal offense in which a victim is coerced into and forced to perform sexual activities; this can include vaginal or anal penetration and oral copulation.

The CCM Definitions

In an effort to standardize definitions the Federal Bureau of Investigation (FBI) developed the Crime Classification Manual (CCM), in which the classifications of rape are based on the primary intent of the offender and the status of the victim (Burgess and Hazelwood 2001b). Rape and sexual assault are divided into three categories in the CCM: adults, adolescents, and children. Adults are eighteen years of age and older and are capable of consent under the laws defining sexual activity, although exceptions may be made for persons with mental impairment or physical damage to the brain (Burgess and Hazelwood 2001b). Adolescents are between the ages of thirteen and seventeen, and their ability to consent varies by jurisdiction (Burgess and Hazelwood 2001b). Children are defined as individuals twelve years old and younger who in all jurisdictions are considered minors incapable of giving consent (Burgess and Hazelwood 2001b). The CCM includes eleven categories of rape and sexual assault, many with subcategories. These divisions illustrate the variety of rape crimes as well as the potential difficulty in prosecuting them.

Criminal enterprise rape is defined as coercion, abuse, or assault that is committed for material gain (Burgess and Hazelwood 2001b). Felony rape is rape committed during the perpetration of a felony, and this crime is defined on the basis of whether the rape was primary or secondary. When the offender does not intend to rape the victim as the primary criminal act but another felony is the intention (e.g., robbery or breaking and entering), the rape that occurs is primary felony rape. Secondary felony rape occurs when rape is the primary intent of the offender, with a secondary felony also planned.

The third CCM category is personal cause rape and sexual assault. These crimes committed for personal causes are acts stemming from personal/psychological internal aggression, with the desired outcome being the sexual victimization of a known or unknown individual. Personal or emotional conflicts underpin the offender's behavior (Burgess and Hazelwood 2001b). Domestic sexual assault is one of nine subcategories within personal cause rape and sexual assault and is defined as rape or sexual assault committed against a spouse, partner, or family member.

Entitlement rape, which includes social acquaintance, subordinate, power-assurance, and exploitative rape, is another subcategory under personal cause rape and sexual assault. Entitlement rape occurs when the offender forces the victim to perform sexual activities as a result of various psychological motivations. The key factor in defining entitlement, anger, and sadistic rape is the amount of aggression exhibited by the offender (Burgess and Hazelwood 2001b). A number of acts can contribute to the classification of the degree of aggression displayed, including injuries greater than minor cuts, force exceeding that needed to attain the victim's compliance, specific acts during the crime (e.g., burning, mutilation, stabbing, choking), and desire or attempts to humiliate the victim (language used, use of feces or urine, forcing a male to observe or evidence of forced fellatio after sodomy) (Burgess and Hazelwood 2001b).

Within the subcategory of entitlement rape is social acquaintance, or "date," rape, which is defined as rape that occurs between an offender and a victim with prior knowledge of or a relationship with each other. This crime often occurs on a date or can occur between a teacher and a student or an athlete and a coach, for example. Subordinate rape is defined by the relationship between the offender and the victim and is a crime involving subordination or an imbalance of power. The offender, who has power over the victim that is based on employment, education, or age, exploits that positional imbalance to take advantage of the victim. Power-reassurance rape is a sudden assault, often against an unknown victim, with little injury caused to the victim. Exploitative rape, or opportunistic rape, is an offense committed with little aggression but with great indifference toward the victim (Burgess and Hazelwood 2001b).

Anger rape, another subcategory within personal cause rape and sexual assault, is defined by the primary motive of the offender: anger. This type of crime is driven primarily by impulse, and a high degree of aggression is displayed (Burgess and Hazelwood 2001b). Within the category of anger rape, four subcategories are identified: gender, age, racial, and global. Gender rape is a crime committed by offenders who hate women and express their rage through rape. Anger rape with an age focus is a crime committed against a victim on the basis of the victim's age, typically involving a child or an elderly individual. Racial anger rape is rape motivated primarily by racial hatred. Global anger rape is committed by an offender who is angry at the world generally and displays a high level of aggression.

Sadistic rape is another subcategory of personal cause rape and sexual assault. The offender employs a level of violence that clearly exceeds that which is necessary to gain the victim's compliance. This level of aggression can cause injuries and even death to the victim. The victim's pain triggers the offender's sexual arousal. Abduction rape is also a category of personal cause rape and sexual assault. Abduction by a stranger occurs when an individual is transported in a vehicle, within a building, or farther than twenty feet for the purpose of the commission of a crime, in this case rape (Burgess and Hazelwood 2001b).

Group cause rape and sexual assault constitutes another classification of rape within the CCM. This type of rape is committed by three or more offenders, whereas two offenders involved in the crime would be categorized under personal cause, and the motivation of the offenders typically varies. Included within group cause rape are formal and informal gang rape and sexual assault. Formal gang rape and sexual assault are committed by a group of three or more offenders who display a sense of cohesiveness and belong to a group that has some internal organizational structure and a name (Burgess and Hazelwood 2001b). Informal gang rape and sexual assault, in contrast, are committed by three or more offenders who do not have an internal organization structure and are loosely organized, and this type of rape and sexual assault often occurs on the spur of the moment (Burgess and Hazelwood 2001b).

Finally, the CCM identifies rape and/or sexual assault not classified elsewhere. This crime may exhibit characteristics of some of the categories listed above but does not fall easily into any one of those divisions.

The Clinical Definition

These legal definitions differ from a clinical definition of rape in a number of ways; most important, the clinical definition approaches rape from a treatment-oriented perspective. Savino and Turvey (2005) note that clinicians define rape in treatment-oriented terms to gain a better understanding of the offender's pathology or to help the victim overcome the trauma of rape. This definition also focuses on the perceptions of the victim rather than the offender's intent (Savino and Turvey 2005). In clinical terms, rape or sexual assault is a form of sexual aggression that is not motivated by sexual desire.

Political Definitions

Political definitions of rape stem from a particular political position or agenda and are advanced by specific groups such as offender or victim advocates, political parties, political movements, and religious institutions. These definitions often represent self-serving objectives that are based on a group's political position. Moral definitions of rape and sexual assault can be perceived as a particular type of political position. These various categorizations emphasize judgments (e.g., good, bad, right, or wrong) of the offender's actions and can be inflammatory. They can reflect anger or a need for retribution or revenge, and moral perspectives on rape and sexual assault often come from victims, advocates, or the media (Savino and Turvey 2005).

Myths about Offenders and Victims

Undergirding these definitions of rape and sexual assault are numerous myths about the offender and the victim. A few of the prominent myths about rape offenders are the myth of the stranger, the myth of the loner, and the myth of uncontrollable arousal. The myth of the stranger remains a pervasive idea about the type of individual who perpetrates the crime of rape. This belief can be dangerous because it suggests that one is safe at home, in a car, or with people one knows. The stranger myth is refuted by rape statistics. According to the National Violence against Women Survey, only 14.1 percent of rape victims are attacked by strangers, whereas 76 percent of rapes and sexual assaults are committed by intimate partners. The statistics change somewhat when the victims are adolescents. The National Survey of Adolescents notes that 23.2 percent of rapes and sexual assaults against adolescents are committed by strangers and 73.7 percent of attacks are perpetrated by family friends, relatives, or nonrelatives who are known well by the victim (e.g., neighbors) (Savino and Turvey 2005, p.16).

The myth of the loner is linked closely with the myth of the stranger. The assumption here is that rape offenders are disenfranchised social outcasts, but studies indicate that the majority of offenders are in consensual relationships when they commit their crimes (Savino and Turvey 2005). Another myth is that of uncontrollable arousal. Everyone's brain chemistry, psychological pleasures, and pain associations are different, and varying degrees of sexual dysfunction occur during the commission of rape (Savino and Turvey 2005). Moreover, rape is not committed to satisfy sexual desire; instead, the offender is seeking to fulfill his or her need for power and control. In this sense rape is a pseudo-sexual act that is a means to achieve the offender's goals (Savino and Turvey 2005).

In addition to offender myths, false beliefs surround the behavior and characteristics of rape victims. A prominent myth is that the victim is responsible for arousing the offender and/or that the victim does not discourage the perpetrator from committing the crime. A victim's clothing or behavior is not an invitation to forced sexual activity. If an individual consents to some sexual activity, that consent does not cover all sexual activity; if the individual says "no" or "stop," that constitutes dissuasion. Additionally, a persistent myth is that if a victim takes drugs or alcohol, the ensuing attack is not rape or sexual assault. An individual under the influence of alcohol or drugs does not cause anyone to assault her or him. Many state laws note that individuals under the influence of alcohol or drugs are impaired and cannot consent to sexual activity. Moreover, offenders who employ drugs or alcohol to subdue a victim are committing a crime in addition to rape or sexual assault.

STATISTICS

Research on crime in the United States indicates a decline in the commission of most crimes, with the incidence rape and sexual assault remaining consistent. In fact, since 2000 FBI data show a 5 percent increase in rape crimes (National Coalition against Domestic Violence [NCADV] 2006). In the United States "1 in 5 women and 1 in 33 men have experienced an attempted or completed rape" (NCADV 2006). According to the National Violence against Women Survey, 76 percent of those who commit rape and/or sexual assault are intimate partners (current or former spouse, cohabitating partner, date, or boyfriend or girlfriend). Intimate partner rape and sexual assault often are linked with physical abuse; 68 percent of physically abused women report sexual assault within their intimate partner relationships (McFarlane and Malecha 2005). Marital rape, which is more specific than intimate partner rape and sexual assault, accounts for 25 percent of all rapes, and married women are likely to experience multiple rapes and/or sexual assaults before escaping from the abuse (NCADV 2006). In addition, individuals who are disabled or pregnant or have attempted to leave a relationship are at greater risk for being victims of intimate partner rape and sexual assault. Intimate partner rape and sexual assault are not limited to heterosexual relationships; the NCADV (2006) notes that 52 percent of the participants in a study of gay and lesbian sexual coercion indicated that they were victims of at least one sexual assault.

Although intimate partnership is the primary relationship in which this type of violence occurs, the most commonly affected demographic group is women between the ages of sixteen and twenty-four, and 70 percent of the rape and sexual assault committed against teenage and college-aged women is perpetrated by an acquaintance or date (NCADV 2006). The National Center for Victims of Crime estimates that 5 percent of college women experience rape in a year and that 60 percent of rapes on college campuses occur in a casual or steady relationship (National Center for Victims of Crime 2006).

Sexual assault and rape in the college environment received increased attention in the first decade of the twenty-first century, and the Department of Justice produced a December 2005 report titled "Sexual Assault on Campus: What Colleges and Universities Are Doing about It." This report highlights the significance of rape and sexual assault on college campuses and also indicates how universities are complying with federal laws and providing resources to victims "unevenly." Moreover, the report notes the widespread underreporting of rape and sexual assault in this environment. The researchers focused on "whether schools have a written sexual assault response policy; whether and how they define sexual misconduct; who on campus is trained to respond to reports of sexual assault; how students can report sexual victimization; what resources are available to victims; and what investigation and adjudication procedures once a report is made" are available ("Sexual Assault" p. 4, 6). These findings indicate the need for continued reform on campuses in a range of areas, such as the development of campus-wide sexual assault policies and efforts to increase reporting.

Women experience rape and sexual assault at a significantly greater rate than do men, but college-age men report unwanted kissing or fondling more than unwanted intercourse, and these advances generally are made by other men. However, most male victims do not report a rape or sexual assault, and so the statistics for this demographic are often unavailable (the FBI Uniform Crime Report does not report men as rape victims, for example). Researchers have begun to address men as victims of rape on college campuses in particular and have noted that men account for approximately 10 percent of rape victims (Sampson 2002, p. 3).

PROFILE OF A RAPE VICTIM

Any woman or man in any racial, socioeconomic, age, and sexual identity category can be a victim of rape despite the fact that the most commonly affected demographic group is teenage and college-age women. Most research on rape victims has focused on the effects of rape, such as rape trauma syndrome, but the existing research has not produced a definitive profile of a rape victim. Most likely this is the case because rape spans such wide cultural categories and because the complexities of the crime make it difficult to identify a single type of victim. For example, the type of abuse, event characteristics, offender pathology, the relationship between victim and offender, victim personality, and the victim's response after the crime are all dimensions that define the crime of rape (Johnson and Sigler 1997). However, these factors offer investigators and prosecutors strategies for gaining insight into a particular crime, and this tool traditionally is called victimology, or the study of victims. By employing victimology, investigators can narrow the suspect pool and achieve a better focus for their case and develop a context for the crime.

Although the victims of rape vary and the crime circumstances are case-specific, the aftermath of rape for the victims has been researched and documented thoroughly. First, victims must decide to report the crime and involve the judicial system. This process requires the victims to convince law enforcement and prosecutors that a crime did occur; they also must convince prosecutors that the crime can be tried in front of a jury; and they then must persuade a jury to convict the offender (Savino and Turvey 2005). Victims may encounter disbelief from friends and/or family members or scrutiny from the public, and that may affect the decision-making process.

Victims also experience rape trauma syndrome. Burgess and Hazelwood (2001a) describe rape trauma syndrome as having two phases—acute and long-term—and as being a syndrome of behavioral, psychological, and somatic responses to a life-threatening situation. The acute phase is described as disorganization, and victims respond emotionally and physically to the immediate impact of the crime. Physical responses can include disturbances of sleeping and eating patterns and symptoms specific to the area or areas that underwent physical trauma during the crime (Burgess and Hazelwood 2001a). Emotional reactions vary widely, but fear is the primary emotional response; that fear is typically of death, mutilation, and/or physical injury (Burgess and Hazelwood 2001a). Other emotional reactions noted by Burgess and Hazelwood include guilt, shame, humiliation, degradation, and embarrassment. After the acute phase of the syndrome, victims undergo the long-term process, which is defined as reorganization. A number of factors contribute to the way victims reorganize their lives, including personality, the support received after the crime, and how those they told about the rape responded (Burgess and Hazelwood 2001a).

Burgess and Hazelwood (2001a) identify four lifestyle areas that frequently experience disruption as a result of rape: physical, psychological, social, and sexual. In the long term victims may experience physical problems in the areas of injury and gynecological and/or menstruation difficulties, such as chronic changes in menstruation patterns (Burgess and Hazelwood 2001a). The psychological reactions during the reorganization process often carry over from the acute phase, such as dreams and nightmares. Common psychological responses also include fears and phobias; fears develop as defense mechanisms, whereas phobias are frequently maladaptive (Burgess and Hazelwood 2001a). A victim's social lifestyle can be affected in a variety of ways, including minimal social functioning. A common response is to seek support from family members regardless of geographical distance (Burgess and Hazelwood 2001a). Finally, victims can experience a fear of sex after a rape, and that fear can increase when a partner wants to return to a previous sexual pattern (Burgess and Hazelwood 2001a).

One type of victim remains understudied: the male victim. Approximately 5 to 10 percent of all reported rape victims are men, and the demographic profile is typically heterosexual: White men in their early to middle twenties and gay men are raped at higher rates than are heterosexual men (Scarce 2001). Most male victims are assaulted in or near their homes by heterosexual men they know, and multiple assailants are more prevalent in assaults on men than in those on women. Weapons are used more often against men than against women. Moreover, men are more likely to deny that a rape occurred. However, the effects are fairly similar because male victims can experience rape trauma syndrome, shame, guilt, anger, depression, and posttraumatic stress disorder.

PROFILE OF A RAPE OFFENDER

As with a rape victim, a specific profile of a rape assailant is difficult to construct because of the variety of personality types, modi operandi, and motives. Examining the range of modi operandi allows investigators to link unsolved rapes and sexual assaults and helps develop investigative leads on the offender's identity (Savino and Turvey 2005). Thus, modi operandi can offer a profile of the type of offender involved in a particular crime. Investigators can learn the involvement of the offender's choices, procedures, and techniques in the commission of the crime that could be characteristic of a particular profession, skill and/or trade, or realm of knowledge, including knowledge of the victim and knowledge particular to the crime scene, by studying modi operandi (Savino and Turvey 2005). Modi operandi behaviors can include the number of offenders, the amount of planning involved, the choice of location, the route selected, the use of weapon and/or restraints, surveillance of the victim, and items taken from the scene of the crime (Savino and Turvey 2005). A number of factors can influence the modus operandi of an offender, including educational or technical materials, trade or professional experience, criminal experience, prior contact with the criminal justice system, the media, and the offender's emotional state (Savino and Turvey 2005).

Savino and Turvey (2005) distinguish between motive and intent in analyzing an offender's motivation. Motive is defined as a general need, whereas intent is a specific plan or aim. By focusing on an offender's motive, investigators can limit the suspect pool to individuals with a particular motive, link unsolved rapes and sexual assaults on the basis of similar motives, and offer circumstantial information on an offender's identity and/or emotional state (Savino and Turvey 2005). Like modi operandi, motive can provide a profile of a particular offender involved in a crime.

A number of researchers have identified a range of rape offender motivational typologies that include power-reassurance (compensatory), power-assertive (impulsive, exploitative, entitlement), anger-retaliatory (displaced aggression), and anger-excitation (sadistic) (Savino and Turvey 2005). Power-reassurance stems from an offender's doubts about prowess and desirability and involves nonaggressive behavior that serves to normalize the assault for the offender (Savino and Turvey 2005). Savino and Turvey (2005) note that the power-assertive typology involves nonlethal but aggressive behavior that stems from an offender's doubts about machismo, confidence, and masculinity, and the attack is typically an overt display of those characteristics. The anger-retaliatory motive satisfies an offender's rage through violent physical and sexual force (Savino and Turvey 2005). Finally, an offender can exhibit the anger-excitation typology, in which the victim's pain triggers the offender's sexual arousal (Savino and Turvey 2005).

According to U.S. Department of Justice statistics in a 1995 study (Greenfield 1997), 56 percent of offenders arrested for rape were white, 42 percent were African-American, and 2 percent were of other racial origin. The National Incident-Based Reporting System (NIBRS) indicates that over 40 percent of rape offenders were thirty years old and older and that approximately one in eight was under eighteen years of age (Greenfield 1997). These statistics provide a broad picture of the types of individuals who tend to commit rape, but the study of modi operandi and motive offers better insight into rape offenders.

INVESTIGATION OF RAPE CRIMES

After the victim has decided to report a rape, law enforcement officials respond. There has been extensive revision to the response procedures for rape and sexual assault because of inconsistencies and errors in the past. Upon arrival, the first responders should assist the victim and provide aid if necessary, notify the appropriate agencies, secure the crime scene, protect the evidence, and establish the basic facts of the incident (Savino and Turvey 2005). These simple procedures begin the complex process of investigating the crime. Along with revisions of investigative procedures, sexual assault protocols have been established in all states to identify the specific needs and nuances of the rape victim and of the crime scene and evidence. Included in this protocol are procedures to be followed by first responders that include instructing the victim not to wash her or his hands, discard clothing, shower, or bathe in order to protect potential evidence (Savino and Turvey 2005). Also, the first responders should conduct an initial interview with the victim that not only gathers information but also takes into account the emotional state of the victim and is conducted with respect and courtesy.

The crime scene is not simply the place where the crime of rape occurred; it can include primary, secondary, and intermediate crime scenes, a disposal site, and the victim. A crime scene is the place where a criminal act has taken place and where evidence of the crime can be collected (Savino and Turvey 2005). In the case of sex crimes the victim's body and clothing constitute a crime scene. Investigators must establish all the scenes involved in the crime, and they often do this by retracing the interaction between the victim and the offender. Once the crime scenes have been identified, investigators, including crime laboratory technicians and police officers, must identify and collect evidence.

Physical evidence in sex crimes is integral to the prosecution of a suspect. In 1994 as noted by Savino and Turvey, Henry Lee identified four types of physical evidence: transient, transfer, pattern, and conditional. All four categories can be part of a rape or sexual assault. Transient evidence is temporary and can be changed or lost with time; it can include odor; temporary imprints and/or indentations in surfaces such as sand, snow, and ice; and burning candles or incense (Savino and Turvey 2005). Transfer evidence is produced by physical contact between persons and/or objects and can be traced back to the source by examining its physical, chemical, or biological properties (Savino and Turvey 2005). Transfer evidence may include or be found on finger or palm prints, tool marks, tracks or impressions, cigarettes, glass, plastic, rubber, paint, hair, fibers, weapons, and bodily fluids (Savino and Turvey 2005). Pattern evidence also is produced by contact between persons and/or objects but has distinctive characteristics; it may include finger or palm patterns, glass fracture patterns, footwear or footprint patterns, tire and/or skid marks, powder residue, fire burn patterns, and modus operandi patterns (Savino and Turvey 2005). Conditional evidence is generated by an action or event, and its presence provides direct evidence that an event has or has not occurred. Conditional evidence may include smoke from a fire, fire color or temperature, the location of an item, and locks and windows that have or have not been engaged (Savino and Turvey 2005). Biological evidence, which may be transfer or pattern evidence, is significant in investigating and prosecuting sex crimes. In these cases the most common biological evidence collected is blood, sweat, semen, sperm, hair, saliva, urine, and excrement (Savino and Turvey 2005). These pieces of evidence may be found on a number of surfaces, including the victim and the offender, and every object and surface at crime scenes can contain biological transfer evidence.

Because the victim herself or himself is a crime scene, processing evidence from the victim requires deliberate procedural attention, and until recently these standards varied greatly across jurisdictions. In the past rape and sexual assault victims were transported to the emergency room, where they had to wait four to twelve hours for an examination. Once they were seen by a medical professional, they often had to wait an additional three hours. Evidence could be lost during that period, and the nurses and doctors were not trained in collecting evidence.

It is recommended that victims be examined within seventy-two hours of an assault, and if a victim does not report the attack immediately, the time needed to collect evidence becomes even more critical. As a result, the Sexual Assault Nurse Examiner (SANE) program was implemented and dictates the standards by which hospitals and medical facilities should attend to rape and sexual assault victims. A SANE professional is a specially trained nurse who is available around the clock to conduct rape and/or sexual assault examinations, and she or he will complete the medical legal examination within a specified time frame (Savino and Turvey 2005).

The SANE program represents a significant step in the standardization of rape and sexual assault examination and investigation protocols that has been established nationwide. The Joint Commission on Accreditation of Health Care Organizations requires emergency and ambulatory services to have standard procedures on rape, sexual assault, and domestic violence examinations and also requires those facilities to train staff in recognizing potential victims of those crimes (Savino and Turvey 2005). Those standards, specifically the implementation of the SANE program, have proved effective. SANE professionals can facilitate reporting and assist the victim in cooperating with the legal process, and they greatly reduce the time a victim must spend in the emergency room. Moreover, they generate better evidence collection because they are trained in this process and they assure that the examination is both medical and legal in nature (Savino and Turvey 2005).

SANE professionals administer the sexual assault medical evidentiary examination, and this aspect of the investigative procedure also has experienced standardization, beginning in California in 1987. The examination begins with the determination by the emergency room triage nurse whether there are any injuries that require immediate attention, and the emergency room physician room waits until the SANE professional or forensic examiner documents the injuries via photography and collects evidence to treat any non-life-threatening injuries (Savino and Turvey 2005). After triage is done and the victim's signed consent for the examination is obtained, the SANE professional conducts the complete examination, including the medical forensic interview; collects any evidence that may confirm recent sexual contact and show whether force or coercion was employed; and corroborates the victim's assault history provided at the initial interview (Savino and Turvey 2005). More specifically, clothing and biological evidence may be collected, further examination and documentation of injuries may occur, preventive care for sexually transmitted diseases and evaluation of pregnancy risk may be administered, and crisis intervention will be offered. The SANE professional is also responsible for providing referrals for follow-up medical and psychological care (Savino and Turvey 2005).

The sexual assault examination can include testing for drug-facilitated rape and sexual assault. Part of the difficulty in prosecuting not only rape and sexual assault cases involving drugs but also the use of drugs in the perpetration of rape and sexual assault is the fact that the victim often has no recollection of the crime because of the effects of the drug. Attention has been paid to the use of Rohypnol and gamma hydroxybutyrate (GHB) in the perpetration of rapes and sexual assaults. However, many other substances have been detected in victims, such as ecstasy, cocaine, marijuana, opiates, muscle relaxers, and alcohol. In fact, the substances detected most commonly are alcohol, marijuana, cocaine, benzodiazepines (e.g., Rohypnol), amphetamines, and GHB. Most of these drugs have sedative effects that cause the user-victim to lose inhibitions, be more submissive, and ultimately lose consciousness (Savino and Turvey 2005). Many of these substances also can cause dizziness, nausea, impaired judgment, and confusion, and drugs such as Rohypnol and GHB can cause the victim to have partial or complete amnesia. In contrast to other types of rape or sexual assault cases, the victim may or may not have been a willing participant in previous acts of consensual sex with the offender or may have consented to or not consented to the use of drugs (Savino and Turvey 2005).

In addition to physical evidence, other types of evidence can include circumstantial evidence, which consists of facts or events that can implicate an individual in a crime, and eyewitness evidence, which consists of one or more persons who claim to have witnessed the crime or saw the suspect in the vicinity of the crime (Burgess and Hazelwood 2001a).

RESOURCES AND VICTIM SERVICES

In the late twentieth century crisis centers offered little in the way of resources and services to victims of rape, but grassroots groups whose formation resulted from the activity of the women's movement ensured that victims had access to counseling and other modes of assistance (Burgess and Hazelwood 2001a). Contemporary hospitals and medical care facilities offer victim care services (VCS) and work in conjunction with the SANE and similar programs. Rape crisis services typically include a twenty-four-hour telephone hotline and Web resources, advocacy to assist with the medical and legal systems, accompaniment to medical or legal appointments or court appearances, and post-rape/assault counseling (Burgess and Hazelwood 2001a). Counseling can be individual or done in a group setting. In the past counseling services were provided by trained volunteers, but more recently mental health professionals have been providing counseling services.

see also Prison, Detention and Correctional Institutions.

BIBLIOGRAPHY

Burgess, Ann Wolbert; Allen G. Burgess; and Robert R. Hazelwood. 2001. "Classifying Rape and Sexual Assault." In Practical Aspects of Rape Investigation: A Multidisciplinary Approach. 3rd edition, ed. Robert R. Hazelwood and Ann Wolbert Burgess. Boca Raton, FL: CRC Press.

Burgess, Ann Wolbert, and Robert R. Hazelwood. 2001a. "Victim Care Services and Comprehensive Sexual Assault Assessment Tool (CSAAT)." In Practical Aspects of Rape Investigation: A Multidisciplinary Approach. 3rd edition, ed. Robert R. Hazelwood and Ann Wolbert Burgess. Boca Raton, FL: CRC Press.

Burgess, Ann Wolbert, and Robert R. Hazelwood. 2001b. "The Victim's Perspective." In Practical Aspects of Rape Investigation: A Multidisciplinary Approach. 3rd edition, ed. Robert R. Hazelwood and Ann Wolbert Burgess. Boca Raton, FL: CRC Press.

Cullen, Francis T., Bonnie S. Fisher, and Heather M. Karjane. Sexual Assult on Campus: What Colleges and Universities are Doing about It. 2005. Washington, D.C.: U.S. Dept. of Justice. Available from http://www.ojp.usdoj.goc/hij.

Greenfeld, Lawrence A. 1997. Sex Offenses and Offenders. Washington, DC: U.S. Department of Justice, Bureau of Justice Statistics.

Johnson, Ida M., and Robert T. Sigler. 1997. Forced Sexual Intercourse in Intimate Relationships. Brookfield, VT: Ashgate/Dartmouth.

Ledray, Linda E. 1999. Sexual Assault Nurse Examiner Development and Operation Guide. Minneapolis, MN: Sexual Assault Resource Service.

McFarlane, Judith, and Ann Malecha. 2005. Sexual Assault among Intimates: Frequency, Consequences, and Treatments. Washington, DC: U.S. Department of Justice.

National Center for Victims of Crime. 2006. "Campus Dating Violence." Available from http://www.ncvc.org.

National Coalition against Domestic Violence. 2006. "Dating Violence." Available from http://www.ncadv.org.

Rozee, Patricia. 2001. "Stranger Rape." In Rape, ed. Mary E. Williams. San Diego, CA: Greenhaven Press.

Sampson, Rana. 2002. Acquaintance Rape of College Students. Washington D.C.: U.S. Dept. of Justice. Available from http://www.cops.usdoj.gov.

Savino, John O., and Brent E. Turvey, eds. 2005. Rape Investigation Handbook. Amsterdam and Boston: Elsevier Academic Press.

Scarce, Michael. 2001. "Uncovering Male-on-Male Rape." In Rape, ed. Mary E. Williams. San Diego, CA: Greenhaven Press.

Thoennes, Nancy, and Patricia Tjaden. Full Report of the Prevalence, Incidence, and Consequences of Violence against Women: Findings from the National Violence against Women Survey. 2000. Washington D.C.: U.S. Dept. of Justice. Available from http://www.ojp.usdoj.gov/nij.

                                          Michelle Parke

Rape

In the period immediately following World War II, when the London and Tokyo Charters attempted to establish a list of crimes against humanity, rape was not explicitly mentioned. In contrast, the underlying crimes of extermination, persecution, and enslavement were expressly included as part of the unlawful acts committed against a civilian population. Whether sexual assaults, in particular rape, could be manifestations of crimes against humanity under the Nuremberg and Tokyo Charters is usually answered in hesitant or dumfounded terms. International criminal scholars, however, such as Cheriff Bassiouni, contend that rape was indeed subsumed in the explicit, residual crime of "other inhumane acts." the last category of crimes against humanity as listed in both the London and Tokyo Charters. International lawyers, such as Patricia Sellers and Kelly Askin, assert that rape not only could constitute at least a part of a crime against humanity, but that the Nuremberg Tribunal accepted evidence of sexual violence as valid in the prosecution of crimes against humanity.

Although the fact is frequently ignored, evidence of rapes and other sexual abuse was introduced by the French and Russian Allied prosecutors at the Nuremberg Tribunal. Witnesses testified about rapes committed by German soldiers in occupied France and on the Russian front. Testimony also informed the judges about sexual abuse, male and female, including sterilization experiments, in Nazi concentration camps. The Nuremberg Judgment specifically addressed crimes such as the killing of prisoners of war, the persecution of Jews, and the deportation of individuals to serve in slave labor programs but, unfortunately, did not refer even once to the crime of rape or other sexual violence. In an apparent effort to explain their decision, the judges observed that, in the section of the judgement that dealt with wars crimes and crimes against humanity, "the evidence was overwhelming in its volume and detail." They proposed, therefore, to deal with the multitude of atrocities quite generally, noting that "every conceivable circumstance of cruelty and horror" had been perpetrated. The judges distinguished, rather hastily, the difference between war crimes and crimes against humanity in their analysis of the "overwhelming" evidence, and they found that:

[I]nsofar as inhumane acts charged in the indictment and committed at the beginning of the war, did not constitute War Crimes, they were all committed in execution of, or in connection with, the aggressive war, and therefore constituted Crimes Against Humanity.

To the extent that the rapes and other forms of sexual violence inflicted upon German civilians, or civilians of other nationalities, were not judged to be traditional war crimes, the Tribunal condemned such conduct as inhumane acts under crimes against humanity. The failure to expressly include rape among the listed crimes against humanity, together with the paucity of clearer judicial explanation on how sexual assault evidence was characterized, has contributed to the continuing myth that rapes and other sexual violence evidence were not pursued at Nuremberg.

At the Tokyo Tribunal, prosecutors submitted harrowing evidence of rapes committed by the Japanese forces in Nanking and other Chinese cities. The evidence also confirmed that rapes, sexual mutilations, and forced sexual intercourse between prisoners occurred frequently. Even though the Tokyo Charter provided for crimes against humanity, the Tokyo Tribunal judges held that all the atrocities committed by the Japanese forces, including the rapes, constituted war crimes. The crimes against humanity provision was not relied upon, probably because initially, crimes against humanity were thought to apply to acts committed against one's own civilian population. The Japanese, unlike the Nazis, were not accused of committing crimes against Japanese citizens. Moreover, crimes committed by the Japanese against peoples they subjugated in Korea and Taiwan were not prosecuted at all, even though they fit the criteria of crimes against humanity. Hence, the Tokyo Tribunal judges employed traditional theories of war crimes in their legal analysis of rapes and other sexual violence.

Control Council Law No. 10 and the Subsequent Nuremberg/Tokyo Trials

After the major Axis criminals were prosecuted at Nuremberg and Tokyo, the minor Axis war criminals, in both Europe and the Pacific theatre, were tried by military courts set up by the Allies in their respective occupations zones. In what is commonly referred to as the "subsequent trials," minor criminals faced charges in the British, Polish, French, and American military courts. Within the U.S. Army occupation zone, these proceedings were established and governed by Control Council Law No. 10. Its provisions proscribed crimes against peace, war crimes, and, importantly, crimes against humanity. For this latter criminal category, the definition reads as follows:

Crimes Against Humanity. Atrocities and offenses, including but not limited to murder, extermination, deportation, imprisonment, torture, rape, or other inhumane acts committed against the civilian population, or persecutions on political, racial or religious grounds whether or not in violation of the domestic laws of the country where perpetrated.

Control Council Law No. 10, unlike the Nuremberg and Tokyo Charters, expressly names rape as a type of crime against humanity. In its strictest sense, however, the law was national military law, decreed to aid in the administration of foreign occupied lands. It was not international law per se, and differed to some extent from the law applied at the International Military Tribunals.

These subsequent trials, held in the occupied sector governed by Control Council No. 10, did not produce as great a wealth of jurisprudence as was generated during the trial of Nazi doctors who performed medical experiments or the trial of the industrial producers of the Zyklon B gas that was used in the concentration camps. There was little jurisprudence on rape, although several cases did roundly condemn other forms of sexual abuse, such as forced sterilization, as inhumane acts prosecutable under the heading of crimes against humanity. The significance of Control Council No. 10 in regard to rape, therefore, lay not in straightforward jurisprudence on the subject, but rather in its clear acknowledgement, so soon after the Nuremberg and Tokyo Charters, that acts of rape could be considered a crime against humanity.

In the Far East, the trails were held to prosecute minor war criminals. In one of these, the U.S. military court charged Japanese General Yamashita for multiple crimes, including rapes committed in the occupied Philippines. In the Dutch Batavia trials in Indonesia, other defendants were prosecuted for forced prostitution. Consistent with the factual and legal holdings of the Tokyo Tribunal, these subsequent trials condemned the rampant commission of rape as a category of war crimes.

In 1950, at the direction of the General Assembly Resolution 95, the International Law Commission produced the Nuremberg Principles to codify the offenses contained in the Nuremberg Charter. The Commission set forth the verbatim text of crimes against humanity as drafted into the Nuremberg Charter. Unfortunately, rape was omitted from this list, even though Control Council No. 10 was still in force. As a result, the legacy of World War II regarding the classification of rape as a war crime remained ambiguous.

The Modern Recognition of Rape as a Crime Against Humanity

The concept of crimes against humanity is one of the few international crimes that has never been grounded in a treaty. Unlike the crimes of apartheid, torture, or genocide, all of which are replete with conventions devoted to their legal terms, there existed no convention establishing internationally agreed upon terms of crimes against humanity, until the adoption of the Rome Statute of the International Criminal Court in 1998. As a result, the modern understanding of crimes against humanity derives from its incorporation into national laws and, more recently, its ubiquitous insertion into the statutes of international courts and tribunals. A notable example of a domestic provision which includes rape among its list of crimes against humanity is found in the law of Bangladesh.

In 1971, East and West Pakistan fought a bloody war of secession, which resulted in the creation of an independent Bangladesh. During that armed conflict, tens of thousands of women were reportedly raped. In 1973, the newly formed Bangladesh legislature published Act XIX to set forth the legal basis upon which to prosecute Pakistani prisoners. Its provision on crimes against humanity read:

Crimes Against Humanity: namely; murder, extermination, enslavement, deportation, imprisonment, abduction, confinement, torture, rape, or other inhumane acts committed against any civilian population or persecution on political, racial, ethnic or religious grounds, whether or not in violation of the domestic law of the country where perpetrated.

This legislation exemplifies the ongoing evolution of the legal concept of crimes against humanity. Like Control Council Law No. 10, the law includes rape and torture among recognized crimes against humanity, along with additional proscriptions outlawing abduction and confinement.

The aftermath of Pakistan's 1971 war did not, however, include the prosecution of rape as a crime against humanity. Instead, an eventual political agreement was reached whereby Pakistan recognized Bangladeshi independence in exchange for the return of its prisoners of war. This agreement derailed any hope of prosecution. A pervasive lack of political will to prosecute international crimes in general, and rapes in particular, created a dearth of jurisprudence on rape as a crime against humanity during the latter half of the twentieth century. Only with the establishment of the ad hoc tribunals for the former Yugoslavia and Rwanda did rape as a crime against humanity receive diligent international attention and concerted enforcement.

In 1991 the disintegration of Yugoslavia devolved in to an armed conflict during which thousands of acts of sexual violence were committed, most notably the rape of detained Bosnian Muslim and Bosnian Serb women. The worldwide media and women's rights and other human rights movements vociferously urged the United Nations to condemn the rapes. Without hesitation, the UN Security Council issued Resolution 820, condemning "the massive, organized and systematic detention and rape of women and reaffirmed that those who commit . . . or order . . . the commission of such acts will be held individually responsible." In 1993, the Security Council established the ad hoc International Criminal Tribunal for the Former Yugoslavia to investigate, prosecute, and judge criminals from all sides of the conflict. The Secretary-General's Report to the Security Council detailed the nature of rapes and sexual violence that occurred during the armed conflict and explained its rationale for placing crimes against humanity within the Yugoslav Tribunal's jurisdiction.

Crimes against humanity refer to inhumane acts of a very serious nature, such as wilful killing, torture, or rape, committed as part of a widespread or systematic attack against the civilian population . . . such inhumane acts have taken the form of so-called "ethnic cleansing" and widespread and systematic rape and other forms of sexual assault, including enforced prostitution.

The ensuing Article 5 of the Yugoslav Statute explicitly enumerated in subsection (g) rape as a crime against humanity.

In 1994, Rwandan ethnic tensions devolved into genocide. The Secretary-General of the United Nations drafted the Statute of the Rwanda Tribunal and included an express provision for rape as a crime against humanity under Article 3(g). The inclusion of rape in the Article 5 of the Yugoslav Statute, and in Article 3 of the Rwanda Statute highlighted the international community's acceptance that the crime formed a part of the customary law that binds all states, even though it had no basis in any formal treaties. The UN's inclusion of rape as a crime against humanity within both statutes signaled the Security Council's intent to ensure that the perpetrators of rape in Rwanda and Yugoslavia would be prosecuted under international law.

Since 1950, the International Law Commission, the body that penned the Nuremberg Principles, had been tasked by the United Nations General Assembly to draw up a Draft Code of Crimes Against Mankind. In 1996, as a result of the Yugoslav and Rwanda Statues, the Commission inserted rape into the crimes against humanity provision of the Draft Code and finally redressed its omission in the Nuremberg Principles.

By the late 1990s, the universal acceptance of the legal concept of crimes against humanity spurred its incorporation into several other statutes of international tribunals. The Rome Statute, which governs the jurisdiction of the International Criminal Court, was signed in 1998 and ratified in 2003. It is the first truly international treaty, drafted to prosecute international crimes (even when they were not generated by a war) or genocide. Article 7(g) of the Rome Statute proscribes a panoply of violent sexual offenses under the heading of crimes against humanity. Included among these offenses are "rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other from of sexual violence of comparable gravity." The International Criminal Court, a permanent body with prospective jurisdiction (the ability to judge international crimes committed in the future), included several explicitly described forms of sexual violence under the heading of crimes against humanity. Prosecutors and judges will eventually be able to rely upon these provisions when prosecuting a widespread or systematic attack against civilians.

The ad hoc tribunals constituted under the Sierra Leone Special Court, the Panels of East Timor, and the anticipated Extraordinary Chambers in Cambodia, have also revisited the concept of sexual assault as a crime against humanity. As a direct outgrowth of the Rome Statute's broader definition of sexual violence, two of the courts have incorporated rape and a selection of other sex-based crimes into their crimes against humanity provision. For instance, Article 2 of the Sierra Leone Special Court includes rape, sexual slavery, enforced prostitution, forced pregnancy, and any other form of sexual violence as crimes against humanity. Section 5 of the United Nations Transitional Administration in East Timor Regulation 2000/11 incorporated the Rome Statute's list of crimes against humanity verbatim, thus including sexual offenses as prosecutable by the East Timor Special Panel. The proposed Extraordinary Chambers of Cambodia, the subject of tense political negotiations between the national leaders and the United Nations, includes rape as the only sexbased conduct explicitly listed under crimes against humanity.

Jurisprudence of Rape as a Crime Against Humanity

In 1998, the Rwanda Tribunal delivered its first judgment, in the case against Jean-Paul Akayesu. Mr. Akayesu was the highest-ranking political official in a commune where about 2,000 Tutsis were slaughtered by a Hutu political militia group called the Interhamwe. During the killings, many Tutsi women fled their homes and sought sanctuary at the communal headquarters where Akayesu presided. The women pleaded with Akayesu to protect them from the oncoming massacre. Testimony revealed that the women were subjected to rapes, gang rapes, and sexual humiliation. The acts often preceded their deaths.

The Akayesu Trial Chamber pronounced a detailed opinion based on the rape testimony it heard. The judges cited the testimony of a Tutsi witness identified as JJ, who asserted that

she was taken by force from near the [municipal office] into the cultural centre . . . in a group of approximately fifteen girls and women. In the cultural center, they were raped. She was raped twice. Then another man came to where she was lying and he also raped her. A third man then raped her, she said, at which point she described herself as near dead.

The Trial Chamber also heard from a Hutu woman, identified as PP, who observed the rape of Alexia, a Tutsi. Witness PP testified that "one person held her neck, others took her by the shoulders, and others held her thighs apart as numerous Interhamwe continued to rape her—Bongo after Pierre, and Habarunena after Bongo."

The Trial Chamber concluded that the sexual assault described in the testimony constituted rape under Article 3, the crimes against humanity provision of the Rwanda Statute. It also found these incidents of sexual violence to constitute an act of genocide, under the prohibition of "causing serious bodily or mental harm to members of the group." In finding Mr. Akayesu guilty, the Trial Chamber, for the first time in international law, undertook to define rape:

The Chamber must define rape, as there is no commonly accepted definition of this term in international law. While rape has been defined in certain national jurisdictions as non-consensual intercourse, variations on the act of rape may include acts which involve the insertion of objects and/or the use of bodily orifices not considered to be intrinsically sexual.

The Chamber defines rape as a physical invasion of a sexual nature, committed on a person under circumstances which are coercive.

Mr. Akayesu was sentenced to life imprisonment for genocide and crimes against humanity, including the relentless rapes committed upon Tutsi women by the Interhamwe.

The jurisprudence of the Yugoslav Tribunal developed along parallel lines with that of its sister tribunal in Rwanda, yet its conception of rape was distinctly different. In a 1998 case, against an individual named Furundzija, the Yugoslav Tribunal employed a more mechanical definition of rape, treating it as a war crime.

In 2000 a Trial Chamber heard a case against Kunarac et al., in which three Bosnian Serbs were charged with rapes, torture, and enslavement. During the trial it was revealed that hundreds of Bosnian Muslim women and girls had been caught up in the military takeover of the town of Foca, in eastern Bosnia. The women were held in a series of Serb-run detention centers. Some were eventually expelled, but others were held by individual Serb soldiers and forced to serve as their personal, sexual slaves.

Each of the accused was found guilty of rape as a crime against humanity under Article 5 of the Yugolsav Statute. They were all sentenced to terms of imprisonment, ranging from sixteen to twenty-eight years. In rendering its decision, this time the Trial Chamber set forth a definition of rape that placed it within the category of crimes against humanity:

The actus reus of the crime of rape in international law is constituted by: the sexual penetration, however slight: (a) of the vagina or anus of the victim by the penis of the perpetrator or any other object used by the perpetrator; or (b) the mouth of the victim by the penis of the perpetrator, where such sexual penetration occurs without the consent of the victim. Consent for this purpose must be consent given voluntarily, as a result of the victim's free will, assessed in the context of the surrounding circumstances. The mens rea is the intention to effect this sexual penetration, and the knowledge that it occurs without the consent of the victim.

This definition combines the mechanical terms employed in the Furundzija case with new considerations. Specifically, the Kunarac definition adds the requirement that the sexual intercourse occur without the victim's consent, and that the perpetrator be aware of the absence of consent.

In the Kunarac Appeals Decision, the Appeals Chamber offered extensive clarification on the meaning of lack of consent as an element of rape as a crime against humanity. It stipulated that the conditions of the rape must be such that true consent is not possible. Moreover, it rejected the ground of appeal put forth by the defendant, who argued that resistance to rape had to be "continuous" or "genuine." The appellate court concluded that:

the Appellants were convicted of raping women held in de facto military headquarters, detention centres and apartments maintained as soldiers residences. As the most egregious aspect of the conditions, the victims were considered the legitimate sexual prey of their captors. Typically, the women were raped by more than one perpetrator and with a regularity that is nearly inconceivable. (Those who initially sought help or resisted were treated to an extra level of brutality). Such detention amounted to circumstances that were so coercive as to negate any possibility of consent.

Even though the Furundzija/Kunarac definition of rape resembles the definition used in many national laws, it is designed for application in periods of armed conflict or in the context of crimes against humanity. Accordingly, any allegation of the possibility of consent must take into account the military, social, and political upheaval that prevail in such circumstances. In order to prove that a victim-survivor of rape did not consent, it is crucial to introduce evidence of the actual circumstances of the offense. Elements such as abduction and detention of civilians can be invoked to show the perpetrator's awareness of inherently coercive circumstances. This broad approach to evidence of consent also reflects the original intent of procedural Rule 96, which is in force at both tribunals. Rule 96 discounts consent as a defense against the charge of sexual assault and rape if a victim has been subjected to or threatened with violence, duress, detention, or psychological oppression.

The definition of rape as a crime against humanity at the Rwanda Tribunal has incorporated the Furundzija/Kunarac approach since 2003. In the Rwandan case of Prosecutor v. Kajelijeli, the Trial Chamber noted that, "given the evolution of the law in this area . . . the Chamber finds the [Furundzija/Kunarac] approach of persuasive authority."

Another important stage in the evolution of rape as a crime against humanity is exemplified by findings of the Yugoslav Tribunal. This is the development of a gender-neutral orientation, which acknowledges that men and boys can be subjugated to rapes. In 2004, in the Prosecutor v. Cesic, the Trial Chamber sentenced Bosnian Serb Ranko Cesic to eighteen years in prison for committing ten camp killings and for committing rape upon two brothers. The Trial Chamber found the following:

Regarding the sexual assaults, the factual basis indicates that the victims were brothers, who were forced to act at gunpoint and were watched by others. . . . [t]he assault was preceded by threats and that several guards were watching and laughing while the act was performed. The family relationship and the fact that they were watched by others make the humiliating and degrading treatment particularly serious. The violation of the moral and physical integrity of the victims justifies that the rape be considered particularly serious as well.

Until recently, the recognition of rape as a crime against humanity that protects both males and females has not been clearly articulated in international jurisprudence. Rapes involving male victims will notably require a different development of the factual basis for rapes. For example, the forced sexual penetration commonly performed in the rape of males was often not physically committed by the accused. Instead, such rapes usually involve two male victims who were directed by the accused to assault one another. Another common element of male rapes in this context is the public nature of the assault. It may be the case that the prosecution of male rape will entail the use of different standards to demonstrate lack of consent than that employed in cases of female rapes.

Future Trends

The initial concept of crimes "repugnant to the principles of humanity" gradually stimulated the development of crimes against humanity. From rape's rather hesitant debut within the crimes against humanity provision after the World War II International Military Tribunals to its uniform acceptance by the beginning of the twenty-first century, many men, women, and children have endured rapes committed as part of attacks on civilian populations. The body of judgments that condemn rape as a crime against humanity have helped to close a legal loophole that resulted from earlier understandings of the offense, which consigned it to the category of war crimes. As the concept evolves, the prohibition of rape under crimes against humanity may become more readily enforcible.

The establishment of the permanent International Criminal Court, the mixed national and international courts, and the ongoing issuance of judgements from the ad hoc tribunals raise valid expectations that the interpretation of rape as a crime against humanity will constantly evolve. Under the International Criminal Court, rape is presently defined as an act in which:

The perpetrator invaded the body of a person by conduct resulting in penetration, however slight, of any part of the body of the victim or of the perpetrator with a sexual organ, or of the anal or genital opening of the victim with any object or any other part of the body.

The invasion was committed by force, or by threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power, against such person or another person, or by taking advantage of a coercive environment, or the invasion was committed against a person incapable of giving genuine consent.

The definition borrows from the substantive jurisprudence of the Yugoslav and Rwanda Tribunals and certain aspects of the procedural safeguards of Rule 96, but it still leaves room for further challenges and development. Issues still to be addressed include the concept of genuine consent, and determining when, other than the presence of force or coercion, a person may be deemed incapable of giving that consent. It might be argued, for instance, that incapacity may be due to age. A further issue lies in the clinical specificity of the definition currently in use, which singles out penetration by a sexual organ of the anal or genital opening. It might be argued that other parts of the body are subject to rape or capable of being an instrument of rape. The answers will be shaped by the horrible conduct of future perpetrators, as well as by the legal deliberations of judges.

SEE ALSO Crimes Against Humanity; International Criminal Court; International Criminal Tribunal for Rwanda; International Criminal Tribunal for the Former Yugoslavia; War Crimes

BIBLIOGRAPHY

Bassiouni, M. Cherif (1992). Crimes Against Humanity in International Criminal Law. Dordrecht, Netherlands: Martinus Nijhoff Publishers:.

Sellers, Patricia Viseur (2000). "The Context of Sexual Violence: Sexual Violence as Violations of Humanitarian Law." In Substantive and Procedural Aspects of International Criminal Law: The Experience of International and National Courts, eds. Gabrielle Kirk-McDonald and Olivia Swaak-Goldman. The Hague, Netherlands: Kluwer Law International.

Swaak-Goldman, Olivia (2000). "Crimes Against Humanity." In Substantive and Procedural Aspects of International Criminal Law: The Experience of International and National Courts, eds. Gabrielle Kirk-McDonald and Olivia Swaak-Goldman. The Hague, Netherlands: Kluwer Law International.

Patricia Viseur Sellers

I am setting forth the above in my personal capacity. This article represents neither the policies of the Office of the Prosecutor of the International Criminal Tribunal for the Former Yugoslavia nor the United Nations.

Rape

THE HISTORICAL CONTEXT

THE SLAVE ERA AND BEYOND

THE MODERN ERA

BIBLIOGRAPHY

Rape is an act of sexual violence, typically perpetrated by males against females or other males. The concept of rape suggests some degree of force in that the sexual encounter is not consensual. Rape is an act of brutality and terror; the rapist is primarily motivated by the need to dominate and control the victim. In the United States, the relationship of rape to race and racism lies in myths created and perpetuated by Europeans about black sexuality that fueled racial violence for centuries. From the slavery era until the mid-twentieth century, myths surrounding black sexuality perpetuated the notion of the hypersexual black woman and the criminally sexual black man. Grounded in the belief that black people were inherently primitive and sexually deviant, these myths served as justifications for various forms of racialized violence by whites toward black men and women. Rape is also a racially significant concept because historically, white women were viewed as chaste and in need of protection; black women were considered unchaste and responsible for any violence directed at them. Well into the twentieth century and beyond, studies show that the experiences of black rape victims are very different from those of white rape victims and that in general, white women’s charges of rape are given more credence than similar accusations made by black women or other women of color.

THE HISTORICAL CONTEXT

Myths surrounding black women’s hypersexuality developed during Europeans’ initial contacts with Africans. Strongly influenced by Victorian values of purity and chastity, Europeans misinterpreted various forms of African culture, particularly African dress and body movements. Europeans often assigned sensual meanings to common African practices that were related to the climate and geography of the continent, such as partial nudity. As historian Deborah Gray White (1985) argues, “the travel accounts of Europeans contained superficial analyses of African life and spurious conclusions about the character of black women” (p. 29). These spurious conclusions gave Europeans license to act out their sexual fantasies and frustrations through brutal and degrading interactions with black women.

For example, in 1810, a young black South African woman named Sara Bartmann was taken to England, where she was put on display for five years as the “Hottentot Venus.” Europeans were particularly curious about

African genitalia and were fascinated with the size and shape of Bartmann’s buttocks, which were shown publicly in various venues. Upon her death at age twenty-five, Sara Bartmann’s genitalia were autopsied by George Cuvier, a leading scientist of the time, who compared her sexual organs to those of an orangutan. Her sexual organs were displayed in a Paris museum until 1974. Thus, two very powerful forces influenced European attitudes toward Africans and affected race relations for centuries: obsessive sexual curiosity about the black body and the belief in black licentiousness. These two forces would form the basis of what some feminist scholars call a rape ideology, which frames rape as an act of uncontrollable male lust and holds women accountable for any forceful behavior directed at them. Rape ideology is strongly intertwined with racism in that sexual violence has often been used as a tool of racial oppression.

For centuries in America, rape was largely defined and conceptualized as a sexual act perpetrated by a black man against a white woman. In fact, any accusation against a black man by a white woman would lead to severe punishment or death of a black man. America’s legal system provided black men with no protection against false accusations of rape and no justice to any black woman raped by a white man.

THE SLAVE ERA AND BEYOND

From the slave era until the mid-twentieth century, interactions between blacks and whites were colored by a complex racial and sexual ideology that contributed to complicated attitudes, beliefs, and behaviors surrounding rape. For example, during the slave era, some black women consented to sexual relations with white men in order to lessen the inherent brutality of slavery. As they sexually exploited black women, slaveholders also utilized rape as a tool for increasing the slave labor force. Some black women consented to sexual relations with black men at their master’s command. Thus, sexual assault—in various forms—was a part of the political economy of American slavery. The sexual exploitation of black women workers remained a persistent practice, challenging black women’sense of respectability for centuries. For example, black domestic workers, who worked in northern cities during the Great Migration in the early twentieth century, experienced rampant unwanted sexual advances while employed in white households. These women—who had fled the South in search of economic opportunities and freedom from legal racism—often had to make choices that compromised their images in the black community.

In the documentary Freedom Bags, a film recounting the hardships of black domestic workers in the 1920s, one woman indicates that many black women “had babies by their employers.” Thus the complexities of interracial rape were further problematized by what appeared to be black women’s willingness to be complicit in their own sexual exploitation. However, black women who consented to unwanted sexual relationships did so because they lacked the power to refuse. These women unwittingly perpetuated the notion of the promiscuous black woman by prioritizing survival over morality.

In 1892 Ida B. Wells turned her attention to the institutionalization of racial violence, particularly in the American South. Deeply angered by the lynching of three black store owners in Memphis, Tennessee, Wells began to reconsider the beliefs that she and most other southerners had about lynching. One was that black men were justifiably lynched for raping white women. Realizing that the three store owners had not committed rape, Wells concluded that lynching was a racist strategy to prevent black economic and political progress. She realized that in the post-Reconstruction South, whites could no longer claim blacks as property, but they could still control blacks by threatening violence. Using her newspaper as a platform, Wells stated unequivocally that many sexual encounters between black men and white women were consensual and that charges of rape against black men were often false. Wells also indicated that rape by white men was far more prevalent, yet white men’s sexual brutality went unpunished. Although Wells was forced to flee the South because of her anti-lynching activism, she continued her campaign in New York and eventually brought international attention to her cause.

THE MODERN ERA

Lynchings decreased in the American South as a direct result of Wells’s activism. Through her campaign she also underscored the sexual victimization of black women by white men. However, it was not until the 1970s that rape—as a form of patriarchal oppression—became a part of the public consciousness, primarily through the activism of white feminists. Although these activists reconceptualized rape as an act of violence specifically directed at women, most ignored the complex racist underpinnings of rape in America. In 1977 the Combahee River Collective, a black feminist group, identified rape as a black feminist issue and championed the need for rape crisis centers in black neighborhoods. Understanding the historical vulnerability of black women, these activists spoke out against sexual violence perpetrated by both white and black men.

Despite antirape activism that has led to more substantive legal protection for women, race-based inequities in arrests, prosecution, and in attitudes toward rape victims are difficult to eliminate. Studies show that black women are less likely to report rape than white women. Some scholars suggest that this reluctance to report rape is related to black women’s acceptance of certain rape myths. Aaronette White (1999) refers to these myths as “mythical gutter wisdom,” a rape ideology that dominates and distorts the discourse on violence against women in the black community. White argues, “When Black-on-Black crime is mentioned, rarely do we discuss the sexual brutalization of Black women” (p. 211). When black women do report rape, they are less likely to be believed than white women in similar situations. In court, jurors are more likely to believe that the assailants of white women are guilty than they are to believe a black woman has been sexually assaulted. Across every aspect of the criminal justice process, racial bias can play an influential role.

Throughout America’s history, black people have lived with two sources of racist shame: black women’humiliation through rape and various forms of public violence targeting mostly black men. This legacy ripped through the very core of black America when Anita Hill accused U.S. Supreme Court nominee Clarence Thomas of sexual harassment before a congressional committee in 1991. Sexual harassment is a form of institutionalized rape in that it implies an element of sexual exploitation, particularly in the workplace. Many African Americans were more appalled at Hill’s public accusations against a prominent black man than they were at the possibility that the accusations could be true. Referring to the congressional hearing as a high-tech lynching, Thomas unearthed shallowly buried racial skeletons and secured his seat on the U.S. Supreme Court. However, both Hill and Thomas could be viewed as victims of a rape ideology that simply assumes new forms from one century to another.

SEE ALSO Body Politics; Feminism and Race; Sex Work; Sexuality; Violence against Women and Girls.

BIBLIOGRAPHY

Combahee River Collective. 1982. “A Black Feminist Statement.” In All the Women Are White, All the Blacks Are Men, but Some of Us Are Brave: Black Women’s Studies, edited by Gloria T. Hull, Patricia Bell Scott, and Barbara Smith, 13– 22. New York: Feminist Press.

Kennedy, Elizabeth. “Victim Race and Rape.” The Feminist Sexual Ethics Project. Available from http://www.brandeis.edu/projects/fse/Pages/victimraceandrape.html

Nelson, Stanley, and Elizabeth Clark-Lewis. 1990. Freedom Bags. New York: Filmakers Library. Film.

White, Aaronette M. 1999. “Talking Black Talking Feminist: Gendered Micromobilization Processes in a Collective Protest against Rape.” In Still Lifting Still Climbing, edited by Kimberly Springer, 189–218. New York: New York University Press.

White, Deborah Gray. 1985. Ar’n’t I a Woman? Female Slaves in the Plantation South. New York: Norton.

Cheryl R. Rodriguez

Rape

A criminal offense defined in most states as forcible sexual relations with a person against that person's will.

Servicemen Charged in Brutal Case of Rape and Murder in Iraq

Five U.S. servicemen were charged in 2006 in connection with the brutal rape of a 14-year-old Iraqi girl, followed by the murder of the girl and three members of her family. Another former member of the army, who was discharged from the Army prior to being charged with the crime, was prosecuted in federal court. The story of the rape and slaying has been one of the most gruesome to arise out of the conflict with Iraq. The attacks took place in March 2006

According to court records, five members of the 502nd Infanry, 101st Airborne Division, plotted to attack a family in the area of Khasir Abyad, which is located about six miles north of Mahmoudiya and about 20 miles south of Baghdad. The area is known as the "Triangle of Death," due to the number attacks there by Sunni insurgents. The victims of the crime had just recently moved into the home where the attacks occurred. Affidavits indicated that four Americans entered the house while a fifth remained behind to monitor the radio. The soldiers separated the teenaged girl, Abeer Qassim al-Janabi, from three other family members. At least one member of the group raped the girl; shot her father, mother, and younger sister; and then shot the girl in the head.

After the attack, the men tried to cover up the crime by dousing the girl in a flammable liquid and attempting to burn her. They also burned their own clothes and discarded the murder weapon, an AK-47 rifle. Iraqi officials learned of the crime on about March 13, but a local police captain said that this information was not relayed to American forces. The satellite channel Al Jazeera covered the alleged crimes extensively, while the media in Iraq did not until the official investigation began.

Four of the suspects involved in the murders included specialist James Barker, Pfc. Jesse Spielman, Pfc. Bryan Howard, and Sgt. Paul Cortez. A fifth serviceman, Sgt. Anthony Yribie, was also charged with dereliction of duty for his failure to report the incident. The alleged leader of the group, a private named Steven Green, had been discharged from the Army after a psychological evaluation revealed that he had a "personality disorder," though it was also reported that Green had been diagnosed as a homicidal threat. Stories written about Green after the incident indicated that he had made such statements as "I want to kill and hurt a lot of Iraqis" and "I came over here because I want to kill people."

In June, two soldiers who were part of the same platoon as the men responsible for the murders were killed in Yusufiya. A message attached to a video that show the murders of the two men indicated that the act was one of revenge for the killings of the family. Shortly after these killings occurred, one of the soldiers involved in the murders of the family reportedly became overcome with guilt and admitted to the killing. U.S. officials later said that they were aware of the crimes but thought that the killing of the family had been the result of "sectarian violence."

Military officials admitted in July that it had begun a criminal investigation into the allegations. It was the fifth pending case that involved allegations of slayings of Iraqi civilians. On July 9, the Army charged Barker, Spielman, Howard, and Cortez with participation in the rape of the girl and with the murder of the family, while Yribie was charged with dereliction of duty. Because these men were still on active duty, they faced what is known as an Article 32 investigation, which is similar to a grand jury investigation in a civilian court.

Green had returned to the United States after his discharge. Prosecutors filed criminal charges against him in federal court in Kentucky, and Green pleaded not guilty. According to the filings, Green had stalked the girl and her family and had organized the entire attack. Attorneys for Green on July 11 requested a gag order that would have prevented federal authorities, including President George W. Bush and General Peter Pace, chair of the Joint Chiefs of Staff, from commenting on the case. According to the defense, public comments by Bush, Pace, and others had interfered with the possibility of Green receiving a fair trial due to their public comments. U.S. District Judge Thomas Russell denied the request on August 31.

The Article 32 investigation of the active servicemen began in August. One witness testified that combat stress had crushed the morale of the troops stationed near Mahmudiya. However, Captain Alex Pickands, the military lawyer prosecuting the men, argued vigorously against the argument that this stress was a defense to the actions of the defendants. None of the men testified at the proceeding. At the same time that the Army was holding its hearings, Iraqi Prime Minister Nouri al-Maliki said that he wanted those responsible for the crime to be tried in an Iraqi tribunal and ordered an independent investigation.

In October, each of the four men were referred to a general court-martial. Spielman and Cortez could have received the death penalty if they were convicted, because their charges included premeditation. About a month later, Green pleaded not guilty to the charges that he faced in federal court. Prosecutors previously asked for a three-month delay in Green's indictment, citing the problems with using evidence and witnesses simultaneously with the military investigation.

Barker entered into a plea bargain in which he agreed to testify against the other soldiers. He received a 90-year sentence with the possibility of parole. He alleged that Cortez and Spielman both participated in the planning of the incident. Cortez avoided the death penalty by pleading guilty to the charges, for which he received a 100-year sentence and was dishonorably discharged. He will be eligible for parole after serving 10 years. Howard later pleaded guilty to being an accessory to the rape and murder.

RAPE

RAPE (Heb. אֹנֶס, ones), sexual intercourse with a woman against her will. Unless the contrary be proved by the testimony of witnesses, intercourse with a woman in a place where no one could have come to her aid even if she had cried out ("in the open country," Deut. 22:25, 27) will be presumed to have occurred against her will. If, however, it happened in a place where she could have summoned help ("in the town," Deut. 23), but there are no witnesses to testify that she did so, she will be presumed to have been seduced, i.e., to have consented to intercourse (ibid. and Sif. Deut. 242:5 and commentaries; Yad, Na'arah Betulah 1:2 and Hassagot Rabad thereto). If intercourse took place while she was asleep and thus unaware, she is considered to have been raped because of the absence of her free will. Intercourse with a female minor is always regarded as rape since she has no will of her own (Yev. 33b, 61b; Sh. Ar., eh 178:3 and Beit Shemu'el n.3, thereto). If intercourse began as a forcible violation but terminated with the woman's consent, she will nevertheless be regarded as having been raped since in such circumstances her passions and nature have compelled her to acquiesce (Ket. 51b; Yad, Issurei Bi'ah 1:9).

Legal Consequences

in civil matters

A person who violates a virgin na'arah (between the ages of 12 years and one day and 12 years and six months) must pay a fine at the fixed amount of 50 shekels of silver (Deut. 22:28–29), as well as compensation for pain and suffering, shame, and blemish, which is to be assessed according to the circumstances in each case (Yad, Na'arah Betulah 2:1–6; see *Damages). If the na'arah is seduced, the seducer is liable to pay the same fine and compensation, but in view of her consent is not liable for compensation for pain and suffering (za'ar; ibid.). Since when laying down the liability for the fine the pentateuchal law speaks of a na'arah only, there is no liability for a fine upon the rape or seduction of a bogeret i.e., a girl above the age of 12 years and six months (Yad, ibid. 1:8), but compensation for pain and suffering, shame, and blemish is due if she was raped (Tur, eh 177, contrary to Yad, ibid. 2:10, 11). The seducer of a bogeret is exempt from all financial liability toward her since, having consented to the intercourse, she is presumed to have waived all such claims (Ket. 42a; Yad, ibid.; Beit Yosef, eh 177).

in personal law matters

In addition to the financial liabilities mentioned above, the violator of a na'arah is compelled to marry her, "She shall be his wife… he cannot put her away all his days" (Deut. 22:29), unless marriage between them is prohibited by the pentateuchal or rabbinic law (see *Marriage, Prohibited). However, for the reasons set out above concerning the fine, this obligation does not apply if the victim is a bogeret (Ket. 39a; Yad, ibid. 1:3; 5:7; Resp. Radbaz, no. 63; Glosses (haggahot) of Akiva Eger to Sh. Ar., eh 177:2). The na'arah or her father may refuse her marriage to the violator, in which event the transgressor will be exempt from the obligation to marry her and be liable only for the fine and the other payments (Yad, ibid. 1:3; Sh. Ar., eh 177:3). A person who seduces a na'arah has no obligation to marry her (Yad, ibid.). A married woman who has been raped does not become prohibited to her husband unless he is a priest, in which case he must divorce her (Yev. 56b; Yad, Ishut 24:19, 21; Sh. Ar., eh 6:10, 11; see also *Marriage, Prohibited). The outraged wife's pecuniary rights toward her husband, in particular her *ketubbah, remain unaffected in both cases since there is no blameworthiness on her part (Yad, ibid. 24:22; Sh. Ar., eh 115:6).

In suits concerning matters of rape and seduction the court must be composed of three competent ordained judges (mumḥim semukhim), and, therefore, in strict law the fine (see above) is no longer recoverable since today there are no semukhim (see *Bet Din); in various takkanot, however, the scholars have nevertheless regulated for recovery of the fine, "lest the sinner be rewarded" (Tur, eh 177; Sh. Ar., eh 117:2; Resp. Radbaz, no. 63; see also *Fine).

In the State of Israel

Of practical significance is the halakhah concerning the effect of rape on the marital relationship between the victim and her husband, since this is a matter of personal law which for Jews is governed by Jewish law. The purely civil-law aspects, such as the question of compensation, are governed before the civil courts by the general law of the state, i.e., the Civil Wrongs Ordinance, 1946 (nv 1968). The provision that a person must marry the na'arah he has violated is rendered unenforceable by the provisions of the Marriage Age Law, 1950, as amended in 1960.

bibliography:

et, 1 (1951³), 166–72; 2 (1949), 60–63, 295f.; B. Schereschewsky, Dinei Mishpaḥah (1967²), 49–51, 316. add. bibliography: M. Elon, Ha-Mishpat ha-Ivri (1988), 1:72, 287, 290, 790ff.; 2:842, 1070; idem, Jewish Law (1994), 1:80, 339ff., 344ff.; 2:969ff.; 3:1030, 1291; M. Elon and B. Lifshitz, Mafte'aḥ ha-She'elot ve-ha-Teshuvot shel Ḥakhmei Sefarad u-Ẓefon Afrikah (legal digest), (1986), 3–5; B. Lifshitz and E. Shochetman, Mafte'aḥ ha-She'elot ve-ha-Teshuvot shel Ḥakhmei Ashkenaz, Ẓarefat ve-Italyah (legal digest) (1997), 4–5.

[Ben-Zion (Benno) Schereschewsky]