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|Classification and external resources|
|Classification and external resources|
Sexual assault is any involuntary sexual act in which a person is threatened, coerced, or forced to engage against their will, or any non-consensual sexual touching of a person. Sexual assault is a form of sexual violence, and it includes rape (such as forced vaginal, anal or oral penetration or drug facilitated sexual assault), groping, forced kissing, child sexual abuse, or the torture of the person in a sexual manner.
In legal terms, sexual assault is a statutory offense in various jurisdictions, including the United States, Canada, England and Wales, Ireland, and Scotland. The legal definition of the crime of sexual assault is determined by each jurisdiction. Specific legal jurisdictions and research often use highly technical or detailed definitions of the term. In some places, such as New South Wales, the crime of sexual assault has replaced the traditional crime of rape, and is being defined as non-consensual penetrative sex. By contrast, in other jurisdictions, the crime deals with non-penetrative sexual contact.
In the United States, the definition of sexual assault varies widely between the individual states. This is because there is no federal rape or sexual assault laws in the United States due to the supreme court ruling of United States v. Morrison which ruled that the Violence Against Women Act The Rape, Abuse & Incest National Network defines sexual assault as "unwanted sexual contact that stops short of rape or attempted rape. This includes sexual touching and fondling."
The National Center for Victims of Crime states:
|“||Sexual assault takes many forms including attacks such as rape or attempted rape, as well as any unwanted sexual contact or threats. Usually a sexual assault occurs when someone touches any part of another person's body in a sexual way, even through clothes, without that person's consent.||”|
Outside of law, the term rape ("an assault by a person involving sexual intercourse with another person without that person's consent") is often used interchangeably with sexual assault, a closely related (but in most jurisdictions technically distinct) form of assault typically including rape and other forms of non-consensual sexual activity.
Abbey et al. state that female victims are much more likely to be assaulted by an acquaintance (such as a friend or co-worker), a dating partner, an ex-boyfriend or a husband or other intimate partner than by a complete stranger. In a study of hospital emergency room treatments for rape, Kaufman et al. state that the male victims as a group sustained more physical trauma, were more likely to have been a victim of multiple assaults from multiple assailants, and were more likely to have been held captive longer.
Sexual assaults on children are normally viewed far more seriously than those on an adult. This is because of the innocence of the child victim, and also because of the long-term psychological impact that such assaults have on the child.
Child sexual abuse is a form of child abuse in which an adult or older adolescent abuses a child for sexual stimulation. Forms of CSA include asking or pressuring a child to engage in sexual activities (regardless of the outcome), indecent exposure of the genitals to a child, displaying pornography to a child, actual sexual contact against a child, physical contact with the child's genitals, viewing of the child's genitalia without physical contact, or using a child to produce child pornography.
The effects of child sexual abuse include depression, post-traumatic stress disorder, anxiety, propensity to re-victimization in adulthood, and physical injury to the child, among other problems. Sexual abuse by a family member is a form of incest, is more common than other forms of sexual assault on a child, and can result in more serious and long-term psychological trauma, especially in the case of parental incest.
Approximately 15% to 25% of women and 5% to 15% of men were sexually abused when they were children. Most sexual abuse offenders are acquainted with their victims; approximately 30% are relatives of the child, most often brothers, fathers, mothers, sisters and uncles or cousins; around 60% are other acquaintances such as friends of the family, babysitters, or neighbors; strangers are the offenders in approximately 10% of child sexual abuse cases.
Studies have shown that the psychological damage is often particularly severe when sexual assault is committed by parents against children due to the incestuous nature of the assault. Incest between a child or adolescent and a related adult has been identified as the most widespread form of child sexual abuse with a huge capacity for damage to a child. Often, sexual assault on a child is not reported by the child for several reasons:
Elderly sexual assault is victimization of persons over the age of 60, most of whom suffer from decreased functionality, frailty, and weakness and therefore are reliant on caretakers. Only 30% of people age 65 or older who are victimized report it to the police. The most common assailants are caretakers, adult children, spouses and fellow facility residents. Signs that an elder is being assaulted include increased vaginal tearing, bleeding, bruising, infection, pelvic injury, soft tissue or bone injury. Also, an altered mood might be an indication of sexual assault. These symptoms include extreme agitation, post-traumatic stress disorder, withdrawal, panic attacks, STDs, exacerbation of existing illness, sleep disturbances, longer recovery times.
Sexual harassment is intimidation, bullying or coercion of a sexual nature, or the unwelcome or inappropriate promise of rewards in exchange for sexual favors. In the United States, sexual harassment is a form of discrimination which violates Title VII of the Civil Rights Act of 1964. The legal and social definition of what constitutes sexual harassment differ widely by culture. Sexual harassment includes a wide range of behaviors from seemingly mild transgressions to serious forms of abuse, and some forms of sexual harassment overlap with sexual assault. Sexual harassment may include leering, pressure for dates, pressing or rubbing against a person, obscene phone calls, bra snapping, wolf-whistles, lip-smacking, indecent exposure, sexual discrimination, displaying explicit materials, sexist jokes, unwanted grabbing, comments about person's body, soliciting sexual services.
The term groping is used to define the touching or fondling of another person in a sexual way (including through clothing), using the hands, without that other person's consent.
Domestic violence is a crime of power and intimidation. It relates highly to sexual assault. Not only can the abuse be emotional, physical, psychological, and financial, but it can be sexual. Some of the signs of sexual abuse are very similar to those of domestic violence.
Traumatic events such as rape and sexual assault have, aside from obvious physical traumas, profound long-term psychological effects on all victims including but not limited to children who are assault victims. These include: denial, helplessness, dislike of sex, anger, self-blame, anxiety, shame, nightmares, fear, depression, flashbacks, guilt, rationalization, mood-swings, numbness, promiscuity, loneliness, social anxiety, difficulty trusting oneself or others, difficulty concentrating. Being the victim of sexual assault may lead to the development of posttraumatic stress disorder, addiction, major depressive disorder or other psychopathologies. Family and friends experience emotional scarring including a strong desire for revenge, a desire to "fix' the problem and/or move on, and a rationalization that "it wasn't that bad".
Due to rape or sexual assault, or the threat of, there are many resulting impacts on income and commerce. In his dissenting opinion of the U.S. Supreme Court case U.S. v. Morrison, Justice Souter explained that 75% of women never go to the movies alone at night and nearly 50% will not ride public transportation out of fear of rape or sexual assault. It also stated that less than 1% of victims collect damages and 50% of women lose their jobs or quit after the trauma. The court ruled in U.S. v. Morrison that Congress did not have the authority to enact part of the Violence Against Women Act because it did not have a direct impact on commerce. The Commerce Clause of Article I Section VII of the U.S. Constitution gives authority and jurisdiction to the Federal government in matters of interstate commerce. As a result, the victim was unable to sue her attacker in Federal Court.
Sexual harassment and assault may be prevented by secondary school, college, workplace and public education programs. At least one program for fraternity men produced "sustained behavioral change."
Several research based rape prevention programs have been tested and verified through scientific studies. The rape prevention programs that have the strongest empirical data in the research literature include the following:
The Men's and Woman's Program, also known as the One in Four program, was written by John Foubert. and is focused on increasing empathy toward rape survivors and motivating people to intervene as bystanders in sexual assault situations. Published data shows that high risk persons who saw The Men’s and Woman's Program committed 40% fewer acts of sexually coercive behavior than those who didn’t. They also committed acts of sexual coercion that were 8 times less severe than a control group. Further research also shows that people who saw The Men’s and Women's Program reported more efficacy in intervening and greater willingness to help as a bystander after seeing the program. Several additional studies are available documenting its efficacy.
Bring in the Bystander. Bring in the Bystander was written by Victoria Banyard. Its focus is on who bystanders are, when they have helped, and how to intervene as a bystander in risky situations. The program includes a brief empathy induction component and a pledge to intervene in the future. Several studies show strong evidence of favorable outcomes including increased bystander efficacy, increased willingness to intervene as a bystander, and decreased rape myth acceptance.
MVP: Mentors in Violence Prevention. The MVP program was written by Jackson Katz. This program focuses on discussing a male bystander who didn’t intervene when woman was in danger. An emphasis is placed on encouraging men to be active bystanders rather than standing by when they notice abuse. The bulk of the presentation is on processing hypothetical scenarios. Outcomes reported in research literature include lower levels of sexism and increased belief that participants could prevent violence against women.
Green Dot. The Green Dot program was written by Dorothy Edwards. This program includes both motivational speeches and peer education focused on bystander intervention. Outcomes show that program participation is associated with reductions in rape myth acceptance and increased bystander intervention.
The city of Calgary, CA initiated a public education campaign aimed at potential perpetrators. Posters in bar bathrooms and public transit centers reminded men that "It's not sex when she's wasted" and "It's not sex when he changes his mind." The campaign was so effective that it spread to other cities. "The number of reported sexual assaults fell by 10 per cent last year in Vancouver, after the ads were featured around the city. It was the first time in several years that there was a drop in sexual assault activity."
President Barack Obama and Vice President Joe Biden introduced in September 2014 a nationwide campaign against sexual assault entitled "It's on us." The campaign includes tips against sexual assault, as well as broad scale of private and public pledges to change to provoke a cultural shift, with a focus on student activism, to achieve awareness and prevention nationwide. UC Berkeley, NCAA and Viacom have publicly announced their partnership.
The U.S. Department of Justice's National Crime Victimization Survey states that on average there are 237,868 victims (age 12 or older) of sexual assault and rape each year. By these calculations an American is sexually assaulted every two minutes.
The victims of sexual assault:
By Gender In 2003
The reporting of sexual assault:
The assailants: According to the U.S. Department of Justice 1997 Sex Offenses and Offenders Study
According to the U.S. Department of Justice 2005 National Crime Victimization Study
In the United States, several studies since 1987 have indicated that one in four college women have experienced rape or attempted rape at some point in their lifetime. These studies are based on anonymous surveys of college women, not reports to the police, and the results are disputed.
A 2006 report from the U.S. Department of Justice titled "The Sexual Victimization of College Women" reports that 3.1% of undergraduates survived rape or attempted rape during a 6-7 month academic year with an additional 10.1% surviving rape prior to college and an additional 10.9% surviving attempted rape prior to college. With no overlap between these groups, these percentages add to 24.1%, or "One in Four".
Koss, Gidycz & Wisniewski published a study in 1987 where they interviewed approximately 6,000 college students on 32 college campuses nationwide. They asked several questions covering a wide range of behaviors. From this study 15% of college women answered "yes" to questions about whether they experienced something that met the definition of rape. An additional 12% of women answered "yes" to questions about whether they experienced something that met the definition of attempted rape, thus the statistic One in Four.
A point of contention lies in the leading nature of the questions in the study conducted by Koss, Gidycz & Wisniewski. Koss herself later admitted that the question that had garnered the largest "rape" result was flawed and ultimately rendered the study invalid. Most prominently the problem was that many respondents who had answered yes to several questions had their responses treated as having been raped. The issue being that these same respondents did not feel they had been victimized and never sought redress for grievances. The resultant change shows a prevalence of only 1 in 22 college women having been raped or attempted to be raped during their time at college.
In 1995, the CDC replicated part of this study. They examined rape only, and did not look at attempted rape. They found that 20% of approximately 5,000 women on 138 college campuses experienced rape during the course of their lifetime. Had they asked about attempted rape, it is surely likely that they would have reached the One in Four proportion.
Other studies concerning the annual incidence of rape, some studies conclude an occurrence of 5%. For example, Mohler-Kuo, Dowdall, Koss & Weschler (2004) found in a study of approximately 25,000 college women nationwide that 4.7% experienced rape or attempted rape during a single academic year. This study did not measure lifetime incidence of rape or attempted rape. Similarly, Kilpatrick, Resnick, Ruggiero, Conoscenti, & McCauley (2007) found in a study of 2,000 college women nationwide that 5.2% experienced rape every year.
Other research has found that about 80,000 American children are sexually abused each year. It has been estimated that one in six American women has been or will be sexually assaulted during her life. Largely because of child and prison rape, approximately ten percent of reported rape victims are male.
Sexual assault is defined as sexual contact with another person without that other person's consent. Consent is defined in section 273.1(1) as "the voluntary agreement of the complainant to engage in the sexual activity in question".
Section 271 criminalizes "Sexual assault", section 272 criminalizes "Sexual assault with a weapon, threats to a third party or causing bodily harm" and section 273 criminalizes "Aggravated sexual assault".
The absence of consent defines the crime of sexual assault. Section 273.1 (1) defines consent, section 273.1 (2) outlines certain circumstances where "no consent" is obtained, while section 273.1 (3) states that subsection (2) does not limit the circumstances where "no consent" is obtained (i.e. subsection (2) describes some circumstances which deem the act to be non-consensual, but other circumstances, not described in this section, can also deem the act as having been committed without consent). "No consent" to sexual assault is also subject to Section 265 (3), which also outlines several situations where the act is deemed non-consensual. In 2011, the Supreme Court of Canada in R. v. J.A. interpreted the provisions below to find that a person must have an active mind during the sexual activity in order to consent, and that they cannot give consent in advance.
273.1 (1) Subject to subsection (2) and subsection 265(3), “consent” means, for the purposes of sections 271, 272 and 273, the voluntary agreement of the complainant to engage in the sexual activity in question.
Where no consent obtained
(2) No consent is obtained, for the purposes of sections 271, 272 and 273, 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.
Subsection (2) not limiting
(3) Nothing in subsection (2) shall be construed as limiting the circumstances in which no consent is obtained.
(3) For the purposes of this section, no consent is obtained where the complainant submits or does not resist by reason of (a) the application of force to the complainant or to a person other than the complainant; (b) threats or fear of the application of force to the complainant or to a person other than the complainant; (c) fraud; or (d) the exercise of authority.
In accordance with 265 (4) an accused may use the defence that he believed that the complainant consented, but such a defence may be used only when "a judge, if satisfied that there is sufficient evidence and that, if believed by the jury, the evidence would constitute a defence, shall instruct the jury when reviewing all the evidence relating to the determination of the honesty of the accused's belief, to consider the presence or absence of reasonable grounds for that belief"; furthermore according to section 273.2(b) the accused must show that he took reasonable steps in order to ascertain the complainant's consent, also 273.2(a) states that if the accused's belief steams from self-induced intoxication, or recklessness or wilful blindness than such belief is not a defence.
Accused’s belief as to consent
(4) Where an accused alleges that he believed that the complainant consented to the conduct that is the subject-matter of the charge, a judge, if satisfied that there is sufficient evidence and that, if believed by the jury, the evidence would constitute a defence, shall instruct the jury, when reviewing all the evidence relating to the determination of the honesty of the accused’s belief, to consider the presence or absence of reasonable grounds for that belief.
273.2 It is not a defence to a charge under section 271, 272 or 273 that the accused believed that the complainant consented to the activity that forms the subject-matter of the charge, where (a) the accused’s belief arose from the accused’s
(i) self-induced intoxication, or
(ii) recklessness or wilful blindness; or (b) the accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting.
The Criminal Law (Sexual Offences and Related Matters) Amendment Act created the offence of sexual assault, replacing a common-law offence of indecent assault. "Sexual assault" is defined as the unlawful and intentional sexual violation of another person without their consent. The Act's definition of "sexual violation" incorporates a number of sexual acts, including any genital contact that does not amount to penetration as well as any contact with the mouth designed to cause sexual arousal. Non-consensual acts that involve actual penetration are rape rather than sexual assault.
Unlawfully and intentionally inspiring the belief in another person that they will be sexually violated also amounts to sexual assault. The Act also created the offences of "compelled sexual assault", when a person forces a second person to commit an act of sexual violation with a third person; and "compelled self-sexual assault", when a person forces another person to masturbate or commit various other sexual acts on himself or herself.
- intentionally touches another person (B),
- the touching is sexual,
- B does not consent to the touching, and
- A does not reasonably believe that B consents.
Whether a belief is reasonable is to be determined having regard to all the circumstances, including any steps A has taken to ascertain whether B consents.
Sections 75 and 76 apply to an offence under this section.
A person guilty of an offence under this section is liable—
Section 74 of the Sexual Offenses Act explains that "a person consents if he agrees by choice and has the freedom and capacity to make that choice."
Section 75 clarifies what consent means
75 Evidential presumptions about consent
(1)If in proceedings for an offence to which this section applies it is proved— (a)that the defendant did the relevant act, (b)that any of the circumstances specified in subsection (2) existed, and (c)that the defendant knew that those circumstances existed,the complainant is to be taken not to have consented to the relevant act unless sufficient evidence is adduced to raise an issue as to whether he consented, and the defendant is to be taken not to have reasonably believed that the complainant consented unless sufficient evidence is adduced to raise an issue as to whether he reasonably believed it.
(2)The circumstances are that— (a)any person was, at the time of the relevant act or immediately before it began, using violence against the complainant or causing the complainant to fear that immediate violence would be used against him; (b)any person was, at the time of the relevant act or immediately before it began, causing the complainant to fear that violence was being used, or that immediate violence would be used, against another person; (c)the complainant was, and the defendant was not, unlawfully detained at the time of the relevant act; (d)the complainant was asleep or otherwise unconscious at the time of the relevant act; (e)because of the complainant’s physical disability, the complainant would not have been able at the time of the relevant act to communicate to the defendant whether the complainant consented; (f)any person had administered to or caused to be taken by the complainant, without the complainant’s consent, a substance which, having regard to when it was administered or taken, was capable of causing or enabling the complainant to be stupefied or overpowered at the time of the relevant act.
(3)In subsection (2)(a) and (b), the reference to the time immediately before the relevant act began is, in the case of an act which is one of a continuous series of sexual activities, a reference to the time immediately before the first sexual activity began.
- Sexual assault
- (1) A person (A) commits an offence if—
- (a) he intentionally touches another person (B),
- (b) the touching is sexual,
- (c) B does not consent to the touching, and
- (d) A does not reasonably believe that B consents.
- Sexual assault
- (1) If a person (“A”)—
- (a) without another person (“B”) consenting, and
- (b) without any reasonable belief that B consents,
- does any of the things mentioned in subsection (2), then A commits an offence, to be known as the offence of sexual assault.
- (2) Those things are, that A—
- (a) penetrates sexually, by any means and to any extent, either intending to do so or reckless as to whether there is penetration, the vagina, anus or mouth of B,
- (b) intentionally or recklessly touches B sexually,
- (c) engages in any other form of sexual activity in which A, intentionally or recklessly, has physical contact (whether bodily contact or contact by means of an implement and whether or not through clothing) with B,
- (d) intentionally or recklessly ejaculates semen onto B,
- (e) intentionally or recklessly emits urine or saliva onto B sexually.
Currently in the United States there are no federal laws relating to sexual assault. This is due to the court ruling of US v. Morrison which overturned the clauses in the Violence Against Women Act which allowed women to sue their attackers in a Federal court. Th Supreme Court justified overturning these articles in the VAWA by saying that allowing women to sue in Federal court whether there was a conviction or not was an over reach on the part of the Federal government and the commerce clause. By doing this the supreme court limited the commerce clause in order to overturn the articles, which was one of the first time that the commerce clause had been limited since its creation.
Penal Code, Sec. 22.011.(a) creates the offence of sexual assault. It reads:
Abuse, sexual (child): generally defined as contacts between a child and an adult or other person significantly older or in a position of power or control over the child, where the child is being used for sexual stimulation of the adult or other person