Sunday, 1 July 2012

Rape and Sexual Assault

Q: Could you explain rape and the laws regarding it in Trinidad and Tobago?

A: Firstly, many people wrongly use the terms "rape" and "sexual assault" interchangeably. I've seen the Trinidad Express reporters do this on numerous occasions...

In a nutshell, rape is always sexual assault but sexual assault is not always rape.

RAPE

In Trinidad and Tobago, the definition of Rape is found in Section 4 of the Sexual Offences Act (as amended).
4. (1) Subject to subsection (2), a person (“the accused”) commits the offence of rape when he has sexual intercourse with another person (“the complainant”)—
  • (a) without the consent of the complainant where he knows that the complainant does not consent to the intercourse or he is reckless as to whether the complainant consents; or 
  • (b) with the consent of the complainant where the consent—
    • (i) is extorted by threat or fear of bodily harm to the complainant or to another;
    • (ii) is obtained by personating someone else;
    • (iii) is obtained by false or fraudulent representations as to the nature of the intercourse; or
    • (iv) is obtained by unlawfully detaining the complainant.

SEXUAL ASSAULT
Sexual Assault is defined in Section 4A of the Sexual Offences Act (as amended).
4A. (1) Subject to subsection (2), a person (“the accused”) commits the offence of grievous sexual assault when he commits the act on another person (“the complainant”)—
  • (a) without the consent of the complainant where he knows that the complainant does not consent to the act or he is reckless as to whether the complainant consents; or 
  • (b) with the consent of the complainant where the consent—
    • (i) is extorted by threat or fear of bodily harm to the complainant or to another;
    • (ii) is obtained by personating someone else;
    • (iii) is obtained by false or fraudulent representations as to the nature of the intercourse; or
    • (iv) is obtained by unlawfully detaining the complainant.

WHAT'S THE DIFFERENCE?
The difference between the two is that rape generally involves penetration, whether it is of the vagina, anus or mouth; whereas, sexual assault will include any kind of unwanted sexual activity (I used "activity" instead of "contact" because some definitions include words as a form of assault).



MARITAL RAPE
Up until 1991, marital rape was rejected as an impossibility by English courts because they believed that a wife gave her consent to sex by getting married. The law in Trinidad & Tobago states that it is possible for a husband to sexually assault a wife, but in regards to rape, I am inclined to believe that should a case of "marital rape" arise, the English law will be effective.