SEXUAL ASSAULT

History of rape

Rape has been known throughout history. In Babylonian and Hebraic law, the rape of a virgin was a crime punishable by death. However, if the victim was a married woman, both she and her attacker were considered equally to blame, unless her husband chose to intervene.

During the Middle Ages, it was common practice for ambitious men to abduct and rape wealthy women in an effort to force them into marriage.

It was only in the late 15^th century that forcible sex was outlawed and then only if the victim was of the nobility.

The Christian condemnation of rape was also a denunciation of women as evil, having lust in their hearts and redeemable only by motherhood.

Rape has been punished because it was considered an offense to the husband or father. Women were conceived as being property of the men. the 18th and 19th centuries, Rape was an offence against the “owner” of the woman who had been raped, either her father or husband.

In Massachusetts: Rape was punished with death but only if the victim was married.

Sexual assault in Canada

In Canada sexual offenses where the victim is not exclusively a minor are considered violent crimes and as such are included within Part VIII of the Criminal Code, entitled Crimes against the Person and the Reputation. More specifically, sexual abuses are considered a variety of assault. So, for example, sexual assault is aggravated according to the violence used by the perpetrator instead of the gravity of the intrusion to or violation of the victim’s sexual integrity. The three main offenses are thus (i) simple sexual assault, (ii) sexual assault with a weapon, threats to a third party or causing bodily harm, and (iii) aggravated sexual assault.

There is no definition of sexual assault in the Canadian criminal code, which only defines the offense of assault. Courts have interpreted that the actus reus of sexual assault is any non-consensual sexual touching. In Canada, consent is primarily defined in an affirmative way. It means a “voluntary agreement of the complainant to engage in the sexual activity in question.” In other words, there is consent when both parties agree to engage in sexual activity. However, “[t]o be legally effective, consent must be freely given.” So, the code also foresees some instances when even though there was consent it is not considered legally valid. These situations are where: (a) the agreement is expressed by the words or conduct of a person other than the complainant; (b) the complainant is incapable of consenting to the activity; (c) the accused induces the complainant to engage in the activity by abusing a position of trust, power or authority; (d) the complainant expresses, by words or conduct, a lack of agreement to engage in the activity; or (e) the complainant, having consented to engage in sexual activity, expresses, by words or conduct, a lack of agreement to continue to engage in the activity.”

The mens rea of sexual assault is the intention to touch, and knowing of, or being reckless of the victim’s lack of consent. The accused may challenge the prosecutor’s evidence of mens rea by asserting an honest but mistaken belief in consent. The accused’s claim that he honestly and mistakenly believed in the victim’s consent must be a belief that the complainant had communicated her consent to him; it must not be tainted by any of the statutory factors vitiating consent; and it cannot be raised unless the accused took “reasonable steps, in the circumstances known to the accused at the time” to ascertain consent.

Sexual assault is aggravated according to the violence used by the perpetrator instead of the gravity of the intrusion to or violation of the victim’s sexual integrity. The three main offenses are thus (i) simple sexual assault, (ii) sexual assault with a weapon, threats to a third party or causing bodily harm, and (iii) aggravated sexual assault.

GROTH’S MOTIVATIONAL TYPOLOGY

· Anger rapist: the rape is a discharge of pent-up anger and rage. There is a displaced behavior, in which the rapist uses high levels physical and sexual aggression. The rapist wants to get even with women for real or imaginary wrongs. He is angry with women and uses sex as a weapon to punish them. The rapist often acts spontaneously, the rape is not premeditated, it is short, almost an afterthought. Once the anger is vented, the rapist leaves quickly. The anger rapist attacks women who symbolize somebody else. After the attack, the rapist feels a great deal of relief until his tension and anger against women as the source of all his problems builds up again.

· Power rapist: The attacker’s goal is sexual conquest using only the amount of force necessary. He wants to be in control and to have women at his mercy. It is not sexual gratification that drives the power rapist, but personal insecurity about heterosexuality and manhood. Two subtypes: (i) Power-Reassurance: the rapist will typically use a surprise attack. He may exhibit “peeping Tom” behavior and may revisit the victim’s home after the rape. Sometimes he makes follow-up contacts by telephone and tends to take trophies or souvenirs from the victim. His stalking patterns may resemble those of an erotomaniac who chases movie stars; (ii) Power-Assertive: the rapist uses aggressive but non-lethal behavior. He leaves his victims emotionally traumatized, often naked by the side of the road. He likes to keep things "foolproof". He won’t take trophies or souvenirs. The rapist likes to make his victims totally submissive from the start, so he may begin with an anal assault or oral sex. He will use a great deal of profanity, demeaning and humiliating the victim: “Shut up or I'll kill you”.

· Sadistic rapist: The rapist is sexually stimulated by the victim’s pain and suffering. The primary motivation is to inflict pain for sexual gratification. Victims are usually strangers who may or may not fit his idea of what a “nice” victim would be. He typically uses brutal force as well as very angry, hostile language. He takes the victim to a pre-selected location, keeping her there for hours to days, during that time torturing her with instruments or devices. The sadistic rapist will probably have a “secret” life as a married, educated, white collar, fine, upstanding member of the community. Drugs and/or alcohol are usually present in the situation.