The dialectic of the intercourse and the female's lack of consent elements in the crime of rape in Bahraini law
A comparative study
DOI:
https://doi.org/10.35246/g488xf18Keywords:
violence, penal code, assault, victim, punishmentAbstract
The crime of rape is based on three pillars, the objective pillar which is the act of intercourse, the victim’s lack of consent pillar, and the subjective pillar, which is in the form of criminal intent, and since rape is an intentional crime, there is stability in the legal trend on its content, which is the knowledge of the perpetrator and his willingness to sexually assault the victim without consent.
However, there are many controversial issues regarding the act of sexual assault and the lack of the victim’s consent which are studied in this article. As the difference in the definition of sexual intercourse leads to the exclusion of many acts from the concept of the crime of rape, such as the difference in what is meant by sexual intercourse, the used tool, and the part of the victim’s body being assaulted.
Such factors can make an act a crime of rape in one legal system, while it is not in others, which necessitates the study of these issues and the comparison of provisions to reach the optimal rules for this crime. In addition, the element of the victim’s lack of consent is linked to several factors that lead to a difference in the legal ruling, such as the age at which the victim’s consent is disregarded, and the application of aggravating circumstances when the perpetrator exploits the victim mental illness. Moreover, the female may reverse her consent during intercourse.
In addition, many laws, especially Western ones, have made amendments to the husband’s coercion of his wife to have sexual intercourse, while the prevailing trend was that such an act is a man’s right, which is still consistent with the trend of most countries that apply Islamic Sharia. After studying the two pillars of rape, we reached several conclusions, namely the importance of expanding the judiciary’s definition of rape to extend to anal sexual intercourse, amending Article 344 of the Bahraini Penal Code to include the definition of rape annal sexual assault on a male, and to consider the perpetrator’s exploitation of the mental disability of the victim within the aggravated cases provided for in Article 348, and amending Article 345 by making the age at which consent is not considered eighteen years instead of twenty-one.
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References
First: Arabic references
a) Books:
Ibn Al-Hammam, 177, Explanation of Fath Al-Qadeer, Part V, 2nd edition, Dar Al-Fikr, Beirut.
Al-Jazaery, Abu Bakr, 1985, Minhaj Al-Muslim, Dar Al-Turath Library, Cairo.
Obaid, Hassanein Ibrahim Salih, 1988, Al-Wajeez in the Penal Code, Private Section, 1st edition, Dar Al-Nahda Al-Arabiya.
Hassan, Saeed Abd al-Latif, 2004, Criminal Protection for Presentation in Islamic Jurisprudence and Positive Law, Dar Al-Nahda Al-Arabiya.
Fouda, Abdul Hakam, 2005, Sexual Crimes in the Penal Code, practical research in the light of jurisprudence and the judiciary of cassation, University Press, Alexandria.
Al-Shawarbi, Abdul Hameed, 2003, Crimes Against Public Morality in Private Laws and Penal Code, Dar Al-Maarif facility, Alexandria.
Mustafa, Mahmoud, 1984, Explanation of the Penal Code, Private Section, 8th edition, Cairo University Press.
Hosni, Mahmoud Naguib, 1988, Explanation of the Penal Code, Private Section, Dar Al-Nahda Al-Arabiya.
Ahmed, Hilali Abdulelah, 2007, Explanation of the Bahraini Penal Code, Private Section, 1st Edition, University of Bahrain.
Odeh, Abdul Qadir, 1985, Islamic Criminal Legislation Compared to Positive Law, 6th Edition, Al-Risala Foundation, Beirut.
b) Legislation:
The Tunisian Basic Law on the Elimination of Violence against Women of 2017.
Omani Penal Code No. (7) of 2018.
Kuwaiti Penal Code No. (16) of 1960.
The Jordanian Penal Code No. (16) of 1960.
Bahraini Penal Code No. (15) of 1976.
Iraqi Penal Code No. (111) of 1969.
Qatari Penal Code No. (11) of 2004.
Libyan Penal Code No. (70) of 1973.
c) Judicial rulings:
Tunisian Court of Cassation, No. 6417 of June 16, 1969.
Bahraini Court of Cassation, Appeal No. 376/2014.
The Egyptian Court of Cassation, Appeal No. 9285 of 64 Q on April 8, 1996.
The Egyptian Court of Cassation, Appeal No. 1683 for the year 28, Technical Office 10, page No. 47, issued on January 19, 1959.
The Egyptian Court of Cassation, Appeal No. 1869 of 39, Technical Office 21, Page No. 382, dated March 16, 1970.
The Egyptian Court of Cassation, Appeal No. 1973 for the year 30, Technical Office 12, page No. 156, dated January 30, 1961.
The Egyptian Court of Cassation, S3 No. 294, page 788, dated April 8, 1952.
The Egyptian Court of Cassation, Collection of Cassation Rulings, Vol. 2 No. 297, p. 1089, dated May 14, 1951.
The Egyptian Court of Cassation, Collection of Legal Rules, Volume 1, No. 16, pg. 22, dated November 22, 1928.
Assiut Criminal Court, Official Series No. 13, No. 127, p. 264, dated June 6, 1912.
Second: Foreign references:
A) Legal books and magazines
a) Books and Journals
Bensussan P. (2009), Marital rape according to French law: desire, need and consent, Sexologies 18, no. 3.
Bessel Richard, Violence, (2015), A Modern Obsession, Simon and Schuster.
Brown, H., Stein, J. and Turk, V. , (1995), The sexual abuse of adults with learning disabilities: Report of a second two-year incidence survey, Mental Handicap Research.
Brown, Carrie M., Uwe P. Gielen, Judith L. Gibbons, and Judy Kuriansky, eds, (2017), Women's Evolving Lives: Global and Psychosocial Perspectives, Springer.
Neumann, Caryn, (2009), Sexual crime: A reference handbook, ABC-CLIO.
Elliott, Catherine, , (2001)French criminal law, Routledge.
Backhouse, Constance & Schoenroth, Lorna, (1984), A comparative study of Canadian and American rape law, Can.-USLJ 7: 173.
Sorensen, David D, 2002, the Invisible Victims, Prosecutor's Brief: the California District Attorneys Associations Quarterly Journal, (August).
Sobsey, Dick, (1996), Relative victimization risk rates: people with intellectual disabilities (unpublished manuscript).
Finkelhor, David, and Yllö, Kersti, (1987), License to rape: Sexual abuse of wives, Simon and Schuster.
Roscoe, Henry, Granger, Thomas Colpitts, and Sharswood, George, (1852), a Digest of the Law of Evidence in Criminal Cases, T. & JW Johnson.
Frieze, Irene Hanson, (1983), Investigating the causes and consequences of marital rape, Signs: Journal of Women in Culture and Society 8.3.
Hasday, Jill Elaine, (2000), Contest and consent: A legal history of marital rape, Cal. L. Rev. 88: 1373.
Yllö, Kersti and Torres, M. Gabriela, eds. , (2016), Marital rape: Consent, marriage, and social change in global context. Oxford University Press.
Lyon, Matthew R. (2004), No means no: Withdrawal of consent during intercourse and the continuing evolution of the definition of rape, J. Crim. L. & Criminology 95 277.
Randall, Melanie, Jennifer, Koshan, and Nyaundi, (2017), Patricia, eds,The Right to Say No: Marital Rape and Law Reform in Canada, Ghana, Kenya and Malawi, Bloomsbury Publishing.
Smith, Merril D., ed, (2001). Sex without consent: Rape and sexual coercion in America. NYU Press.
Deepa, Narayan-Parker, & Patel, Raj, (2000), Voices of the poor: can anyone hear us?, Vol. 1. World Bank Publications.
Lacey, Nicola, Wells, Celia, and Quick, Oliver, (2003), Reconstructing criminal law: text and materials, Cambridge University Press.
Thomas, R. Murray, (2009), Sex and the American Teenager: Seeing Through the Myths and Confronting the Issues, R&L Education.
Bessel, Richard, (2015), Violence: A Modern Obsession, Simon and Schuster.
Simon, Rita James, ed, (2001), A Comparative Perspective on Major Social Problems, Lexington Books.
Flowers, Ronald B. , (2006), Sex crimes: perpetrators, predators, prostitutes, and victims, Charles C Thomas Publisher.
Christopher, Russell L. and Kathryn H. Christopher, (2007), Adult Impersonation: Rape by Fraud as a Defense to Statutory Rape, Nw. UL Rev., 101.
Sir Hale, Matthew, 1971 , Historia Placitorum Coronae (London Professional Books, first published 1736, ed.) vol 1 629.
Smith, Merril D. ed, (2018), Encyclopedia of Rape and Sexual Violence [2 volumes], ABC-CLIO.
Salthouse, Sue and Frohmader, Carolyn, 2004, Double the Odds: Domestic Violence and Women with Disabilities, (Paper presented at Home Truths Conference, Melbourne, 15–17 September).
Dunne, Timothy P. and Power, Anne, , (1990) , Sexual abuse and mental handicap: Preliminary findings from a community based study, Mental Handicap Research3, 111-125.
Larcombe, Wendy and Heath, Mary, (2012), Developing the common law and rewriting the history of rape in marriage in Australia: PGA v The Queen, Sydney L. Rev. 34: 785.
Denno, Deborah W. (1997), Sexuality, rape, and mental retardation, U. Ill. L. Rev: 315.
Fradella, Henry F. & Sumne, Jennifer M., (2016), Sex, Sexuality, Law, And (In)Justice, New York, NY: Routledge.
b) Legislation:
Scotland Sexual Offences Act 2009.
New Zealand Crime Act No. (43) 1961.
New South Wales Crimes Act No. 40 of 1900.
German Criminal Code of 1871.
US Federal Criminal Code of 1948.
The Criminal Code of Canada (R.S.C. 1985, c. C-46) of 1985.
Arizona State Criminal Code of 2005.
Western Australian Criminal Code Act Compilation Act 1913.
Alabama Criminal Code of 2012.
Alaska Statutes Title 11 - Criminal Law of 1983.
Illinois Criminal Code of 1961.
Indiana Criminal Law and Procedures 2014.
Swedish Criminal Code of 1962.
Idaho Criminal Code 1971.
Tasmania Criminal Law of 1924.
Victoria Criminal Code No. 81 of 1991.
Kansas Criminal Code of 1970.
Kentucky Revised Statutes.
Colorado Criminal Code of 2016.
Queensland Penal Code of 1899.
Louisiana Criminal Code of 1942.
Maryland Criminal Code of 2010.
Nebraska Criminal Code of 2006.
New Hampshire Criminal Code of 1971.
Spanish Penal Code No. (10) of 1995.
Irish Penal Code No. (32) of 1990.
Norwegian General Civil Penal Code No. (10) of 1902.
Dutch Penal Code of 1881.
Greek Penal Code No. (1492) of 1950.
Rhode Island Penal Code.
Penal Code of the US State of Connecticut 2015.
Queensland Penal Code of 1899.
Michigan Penal Code No. 328 of 1931.
South Australian Penal Code Act of 1935.
California Penal Code of 1872.
New Jersey Criminal Justice Code of 2013.
Swiss Criminal Code of December 21, 1937.
French Penal Code of July 22, 1992.
The English Sexual Offenses Act of 20/11/2003.
c) Judicial Rulings
Battle v. State, 287 Md. 675, 414 A.2d 1266 (1988).
Boro v. Superior Court 163 Cal. App. 3d 1224, 210 Cal. Rptr. 122 (1985).
Castro-Castro Prison v. Peru (2006), C. No. 60.
Commonwealth v. Goldenberg, 155 N.E.2d 187 (Mass. 1959).
Conners v. State (1879), 47 Wis. 523, 2 N.W. 1143.
Cour de Cassation, Chambre criminelle, 83786-90, Bull Crim 1990 no 313, 5 September 1990.
Cour de Cassation, Chambre criminelle, 91-86346, Bull Crim 1992 no 232, 11 June 1992.
Curtis v. State, 236 Ga. 362 (223 S.E.2d 721) (1976),.
D.P.P. v. Morgan, [1975] 2 All E.R. 347, 365 H.L.
In re John Z., 29 Cal. 4th 756, 128 Cal. Rptr. 2d 783, 60 P.3d 183 (2003).
McGill v. State, 18 P.3d 77 (Alaska Ct. App. 2001).
McNair v. State, 108 Nev. 53, 825 P.2d 571 (1992).
People v. Dohring, (N.Y. 1874) 59 N. Y. 374.
People v. Hough, 1994, 159 Misc.2d 997, 607 N.Y.S.2d 884.
People v. Liberta, 64 N.Y.2d 152, 163 (1984).
People v. Roundtree, 91 Cal. Rptr. 2d 921, 923 (Cal. Ct. App. 2000).
People v. Stanworth (1974) 11 Cal.3d 588, 114 Cal.Rptr. 250, 522 P.2d 1058.
People v. Towery 35 Ill. App.3d 953 (1976) 343 N.E.2d 15.
People v. Vela (1985) 172 Cal.App.3d 237, 218 Cal.Rptr. 161.
People v. Ward (1980), 83 Ill. App. 3d 766, 404 N.E.2d 847,770.
Prosecutor v. Furundzija, Case IT-95-17/1-T.
Prosecutor v. Kunarac et al, Case. IT-96-23-T & IT-96-23/1-T.
R v L (1991) 174 CLR 379.
R v R [1991] 3 WLR 767.
R v Winchester [2011]QCA 374.
State v. Baby, 946 A.2d 463, 404 Md. 220 (2008).
State v. Bunyard, 281 Kan 392, 133 P.3d 14 (2006).
State v. Crims, 540 N.W.2d 860 (Minn.App. 1995).
State v. Jones, 521 N.W.2d 662 (S.D. 1994).
State v. Robinson, 496 A.2d 1067 (Me. 1985).
State v. Siering, 35 Conn.App. 173, 644 A.2d 958, 964 (1994).
Stephen v. State, 11 Ga. 225, 239 (1851).
Suliveres v. Commonwealth 449 Mass. 112 (2007).
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