Elements of the crime of rape
Absence of common definition for crime rape implies absence of common elements of the subject matter; therefore let us see those elements which are recognized under different jurisdictions.
England
Rape is an offence under section one of the Sexual Offences Act 2003 and the offence is defined as;
- The person (A) intentionally penetrates the vagina, anus or mouth of another person (B) with his penis, and
- B does not consent to the penetration, and
- A does not reasonably believe that B consents.
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The above definition of the offence of Rape contains a number of ‘elements’ all of which must be proven by the prosecution in order for a conviction to occur. Such elements are;
Penetration
This means that
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Although the actus reus and the mens rea are components of all crimes, the mens rea only becomes relevant when the conduct in question contains some level of ambiguity. The need to prove both the actus reus and the mens rea is applicable to other crimes besides rape. The most regularly used example is the crime of trespass; it is against the law to trespass onto another’s property, but a person cannot be convicted if they did not know they were trespassing (i.e. if private property was not clearly …show more content…
This means, the perpetrator should have coerced the victim and the later should have defended for an act to constitute rape. Simply saying "No" was not sufficient to find the defendant guilty, and there was no attempt to define what constituted consent. That the law placed too much focus on whether the victim resisted and did not reflect real-life scenarios in which people were raped.
By considering the above fact, Germany's parliament has passed a new law defining rape, clarifying that "No means No", even if a victim did not fight back. Under the new law both physical and verbal cues from the victim will take into account when assessing whether rape took place, meaning, in theory, that saying "No" could prove a lack of consent and constitute rape .
Therefore, the elements of rape in Germany are;
Sexual acts
The definition didn’t clearly specify the types of sexual acts which constitute rape. It seems that every sexual assault committed against consent capable of forming rape.
Consent
According to the new law, the word “No” can prove lack of consent. So that, any sexual act committing against consent amount to rape .
France
France defines rape as; Any act of sexual penetration, whatever its nature, committed against another person by violence, constraint, threat or surprise