Sexuální souhlas v právu

Regional women's rights conventions participation map.svg
Autor: Nederlandse Leeuw, Licence: CC BY-SA 4.0
Member states of the regional organisations AU, CoE and OAS by their participation in the three landmark African, American and European continental women's rights conventions: the Maputo Protocol (African Union 2003), the Belém do Pará Convention (Organization of American States 1994) and the Istanbul Convention (Council of Europe 2011).

Consent-based and coercion-based sexual violence legislation in Europe.svg
Autor: Nederlandse Leeuw, Licence: CC BY-SA 4.0
Evropský přehled právních předpisů týkajících se sexuálního násilí. (Viz též Sexuální souhlas v právu).

Consent-based and coercion-based sexual violence legislation world map.svg
Autor: Nederlandse Leeuw, Licence: CC BY-SA 4.0
World map of consent-based and coercion-based sexual violence legislation, and whether exemptions for marital rape (spousal rape) exist or not.

For a detailed overview of Europe, see:

• File:Consent-based and coercion-based sexual violence legislation in Europe.svg

For a detailed overview of the United States, see:

• File:Nonconsensual penetrative sex laws by U.S. state map.svg
• File:Nonconsensual non-penetrative sex laws by U.S. state map.svg

For a detailed overview of Marital rape laws by country, see:

• File:Marital rape laws by country.svg

Other countries:

• Afghanistan: The Afghan Penal Code was amended in 2017, containing Article 636 which states: 'A person who commits sexual intercourse or inserts body parts or other objects into the victim’s vagina or anus by using force, means of threat, or using a victim's physical or mental inability to express consent or lack of consent (Male or Female), or giving anesthetic substances or other mental affecting drugs, is considered as a perpetrator of rape.'^[2] This appears to criminalise marital rape as well. However, the Shia Personal Status Law, applying to the Shia Muslim minority of approximately 6 million Afghans, exempts spousal rape in Article 132 (2): "It is the duty of the wife to defer to her husband's inclination for sexual enjoyment".^{[law 1]}
• Algeria: There is no clear definition of rape in Algerian law; Article 333 of its Penal Code only criminalises 'anyone who has committed a public outrage against decency', and in similar words 'public outrage against decency consisting of an unnatural act with an individual of the same sex'. This gives no indication or distinction whether the people involved in the acts are consenting to it or not, merely that the public is supposedly outraged by such acts. Article 334 prohibits '(attempted) assault against decency without violence against a person of either sex younger than 16' (the Algerian age of consent), but against adults only '(attempted) assault against decency with violence' (Article 335) is banned. The lack of unambiguous definitions and explicit criminalisation of marital rape in either the Penal Code or other laws such as Law no.15-19 against domestic violence (2015) has been criticised by the CEDAW Committee and human rights organisations, which urged Algeria to adopt clear, consent-based legislation.^[3][4]
• Argentina: Two laws criminalise rape, including spousal rape; both are coercion-based. Article 2 of Law 25.087 (1999) describes various 'crimes against sexual integrity' as 'Anyone who sexually abuses a person of either sex when the person is under the age of thirteen or when there is violence, threat, coercive or intimidating abuse of a dependency relationship'; this includes 'carnal access by any means'.^[5] Article 5 of Law 26.485 (Law of Integral Protection of Women, 2009) defines sexual violence as 'Any action that implies the violation in all its forms, with or without genital access, of a woman's right to voluntarily decide about her sexual or reproductive life through threats, coercion, use of force or intimidation, including rape within marriage or other related or kinship relationships, whether or not there is coexistence, as well as forced prostitution, exploitation, slavery, harassment, sexual abuse and trafficking in women.'^[6]
• Australia: All six states, the Northern Territory and the Australian Capital Territory have consent-based laws against what they variously define as 'rape', 'sexual assault', or 'sexual intercourse/penetration without consent'.^[7]
• Bangladesh: Section 375 of the Bangladeshi Penal Code is almost identical to the Pakistan Penal Code, which in turn is derived from the same Section 375 in the Indian Penal Code. It states that 'a man is said to commit rape who has sexual intercourse with a woman (...) against her will' (1), 'without her consent' (2), when consent was obtained by coercion (3), when consent was obtained by identity deception (4), or when she was incapable of consenting due to her age being younger than 16 (5). However, unlike the Pakistan Penal Code, but just like Indian Penal Code, marital rape of wives from age 13 is not criminalised (since sex within marriage is considered consensual by definition).^{[law 2]}
• Bolivia: In 2013 the Bolivian government passed the Law Guaranteeing Women a Life Free from Violence (Ley Integral Para Garantizar A Las Mujeres Una Vida Libre De Violencia).^[8] Its provisions included the repeal of the marital rape exemption in the Penal Code,^[9] and making rape by a spouse an aggravating factor when sentencing, extending imprisonment by 5 years.^[10] Despite the introduction of words such as 'consent' and 'non-consensual', Bolivian criminal law remained coercion-based. ^[10] "Rape" (violación) could, according to Article 308, be committed in two ways: 'by means of intimidation, physical or psychological violence, [performing] non-consensual sexual acts involving carnal access with a person of either sex, by means of penetration...' ('intimidation/violence' thus being a constituent element of 'non-consensual sexual acts'), or 'under the same circumstances, even if there is no physical violence or intimidation, taking advantage of the victim's serious mental illness or lack of intelligence, or who is otherwise incapable of resisting' (resistance or capacity to resist thus being required or expected in all other cases).^[10] Article 312 bis "Abusive sexual acts" is a notable provision stating that 'the person who, during consensual sexual intercourse, forces his partner or spouse to endure acts of physical violence and humiliation', can be punished with imprisonment for 4 to 6 years.^[10]
• Botswana: Although marital rape is not criminalised, since sex within marriage is considered consensual by definition,^[11][12]:157 non-marital rape is defined as sexual penetration 'without the consent of such other person, or with such person's consent if the consent is obtained by force or means of threats or intimidation of any kind'.^[13]
• Brazil: In the Penal Code of Brazil, Article 213 (2009 revision) defines "rape" (estrupo) as 'compelling someone, through violence or serious threat, to having carnal conjunction or to practicing or allowing another libidinous act'.^[14] In the 2001 case Prosecutor v. Kunarac, the International Criminal Tribunal for the former Yugoslavia (ICTY) cited Article 213 as an example of a law 'requiring violence, force or a threat of force' to meet the definition of 'rape'.^[15] In the context of domestic and family violence against women, Article 7(III) of the Lei Maria da Penha (Law 11.340 of 2006) defines "sexual violence" (violência sexual) as "any conduct that forces her to witness, maintain or participate in unwanted sexual intercourse, through intimidation, threat, coercion or force (...)."^[16] Article 215 (2009 revision) of the Code criminalises 'carnal conjunction' (conjunção carnal) by 'fraud or other means that prevent or hinder the victim's free expression of will', and thus defines scenarios in which the law deems people incapable of consenting.^[14] However, there is no stipulation that a lack of freely given consent during 'carnal conjunction' constitutes rape.^[14]
• Canada: 'Assault' is defined in Section 265(1)(a): 'A person commits an assault when, without the consent of another person, he applies force intentionally to that other person, directly or indirectly'; Section 265(2) stipulates that this also applies to sexual assaults.^[17] Consent is defined in Section 273.1(1) – as well as Section 153.1(2) – as 'the voluntary agreement of the complainant to engage in the sexual activity in question. Consent must be present at the time the sexual activity in question takes place.'^[17] Sections 271, 272 and 273 criminalise 'Sexual assault', 'Sexual assault with a weapon' and 'Aggravated sexual assault', all three of which spouses may be charged with according to Section 278, thus explicitly criminalising spousal rape.^[17]
• Chile: In the Chilean Penal Code (24 August 2022 revision), Articles 361–372 address sexual violence from a coercion perspective. "Rape" (violación) is defined as "A person [having] carnal access, vaginally, anally or buccally, to a person over fourteen years of age, in any of the following cases: (1) When force or intimidation is used, (2) When the victim is deprived of consciousness, or when their incapacity to oppose is taken advantage of, or (3) When the alienation or mental disorder of the victim is abused." The only mention of 'consent' (consentimiento) is in Article 366, which mentions 'the use of surprise' as an example of an '[abusive] manoeuvre that does not imply the consent of the victim', and by which the perpetrator can 'abusively [perform] a sexual action other than carnal access with a person over fourteen years of age'. In short, unless the perpetrator uses force or intimidation, or an abusive manoeuvre to undermine the other person's opposition, or takes advantage of the other person's pre-existing incapacity to oppose the sexual violence, the consent of every person aged at least 14 is presumed. Marital rape is criminalised in Article 369.^[18]
• China: Chinese rape law is coercion-based: "Article 236. Whoever, by violence, coercion or other means, rapes a woman is to be sentenced to not less than three years and not more than 10 years of fixed-term imprisonment."^[19] Chinese law also does not safeguard same-sex couples or victims of marital rape.^[20]
• Colombia: Articles 205 to 212A criminalise various sexual acts (including spousal rape, 211(5)) on the basis of violence. 210A and 212A do mention consent, but only in the context of the incapacity to consent to sexual acts due to being overpowered by 'superiority or authority' (210A) or 'fear of violence, intimidation; illegal detention; psychological oppression; the abuse of power; the use of environments of coercion and similar circumstances that prevent the victim from giving their free consent' (212A).^[21]
• Democratic Republic of the Congo: Although the Law Amending the Penal Code (2006) criminalised 'any act contrary to morals intentionally and directly carried out on a person without the valid consent of that person' as 'indecent assault' (Article 167), Article 170 states: 'Rape is committed by the use or threat of violence or serious harm or force against a person, directly or through an intermediary or through a third party, either by surprise, by psychological pressure or in the context of a coercive environment or by abusing a person who, because of an illness, the impairment of his or her faculties or any other accidental reason has lost the use of his or her faculties or has been deprived of them by tricks'.^[22][23] Moreover, the legal definition of rape does not include spousal rape;^[24] customary law holds that sex within marriage is consensual by definition.^[25]
• Ecuador: The 2014 Penal Code states in Article 175(5): 'In sexual crimes, the consent given by the victim under eighteen years of age is irrelevant.' However, 'consent' is not mentioned in any of the provisions in Articles 166–175 related to sexual crimes against victims aged 18 and older either. Only Article 170 "Sexual abuse" (which is done 'against the will of another') and Article 171 "Rape" (Violación) can be committed against people aged 18 or older. Rape is committed in three scenarios: (1) 'When the victim is deprived of reason or sense, or [unable to] resist', (2) 'When violence, threat or intimidation is used.', (3) 'When the victim is under fourteen years of age.'^[26]
• Egypt: Although a court ruled in 1928 that marital rape is legal,^[27] Article 267 of the Egyptian Penal Code (last amended by Law No. 11 of 2011) states that 'whoever has sex with a female without her consent' (بغير رضاها يعا bighayr raddaha yaea) has committed rape.^[28][29]
• Ethiopia: Criminal Code Article 620 states that rape is committed by 'whoever compels a woman to submit to sexual intercourse outside wedlock, whether by the use of violence or grave intimidation, or after having rendered her unconscious or incapable of resistance', thus placing responsibility on the victim to resist her attacker until she is overcome by coercion, and exempting marital rape from prosecution.^[30]
• Greenland and Faroe Islands: As an autonomous country within the Kingdom of Denmark, Greenland originally had the same Criminal Code as Denmark itself, but since 1954, Greenlandic legislation and jurisprudence have developed autonomously from Denmark. The two most important provisions on rape in Greenland's Criminal Code are Article 77 and Article 216, both of which establish coercion (either by "violence or threat of violence", "unlawful coercion", or inability to resist) as a constituent element of "rape".^[31] On 1 January 2021, paragraphs 216 and 228 of the Danish Penal Code were amended with a consent-based rape provision, but these amendments did not apply to Greenland and the Faroe Islands.^[32]
• India: Although marital rape of wives above age 14 is not criminalised (since sex within marriage is considered consensual by definition), Section 375 of the Indian Penal Code stipulates that any man who has sexual intercourse with any woman he is not married to 'against her will' (1), 'without her consent' (2), when consent was obtained by coercion (3), when consent was obtained by identity deception (4), when she was incapable of consenting due to intoxication with a substance (5), when she was incapable of consenting due to her age being younger than 16 (6), has committed rape.^[33] Furthermore, Section 377 of the Indian Penal Code provides that any other form of penetrative carnal intercourse with a man, woman or animal is also a crime, although on 6 September 2018, the Supreme Court of India ruled unanimously in Navtej Singh Johar v. Union of India that Section 377 was unconstitutional "in so far as it criminalises consensual sexual conduct between adults".^[34][35]
• Indonesia: Article 285 of the Indonesian Criminal Code requires 'force or threat of force' for sexual intercourse with a woman out of marriage to constitute rape. Similarly, Article 289 criminalises 'obscene acts' forced upon any person by any person 'using force or threat of force'.^[36] Although Article 285 includes "out of marriage" in the definition of rape,^[37] marital rape is considered a form of domestic violence under Articles 5, 8, 46, 47 and 53 of the Law Regarding the Elimination of Violence in the Household, 2004.^[38]
• Iran: Penal Code Article 221 considers sex within marriage consensual by definition, and all sex outside marriage to be zina (a type of crime) by definition. Article 224 (d) is understood to refer to rape outside marriage, which is defined as "zina committed by coercion or force".^{[law 3]}
• Iraq: Article 393 of the Penal Code (as amended in 2010) states: 'Any person who has sexual intercourse with a female without her consent or commits buggery with any person without their consent is punishable by a term of imprisonment not exceeding 15 years'. However, other forms of sexual assault are only criminalised in Article 396 if they are committed 'without his or her consent and with the use of force, menaces, deception or other means', implying that some kind of coercion needs to be demonstrated in order to be considered a crime, and that lack of consent alone is not sufficient. It is not clear whether marital rape is criminalised by Article 393, although the next Article 394 goes on to criminalise sexual intercourse with underage women and buggery of any person 'outside of marriage' without their consent if they are below 18 (age of consent) or 15 years of age, implying that Article 393 either concerned people within marriage, aged 18+ years, or both. Article 398 (previously Article 427) is a marry-your-rapist law.^[39]
• Japan: Penal Code of Japan Article 177 describes forcible sexual intercourse as 'A person who, through assault or intimidation forcibly engages in vaginal intercourse, anal intercourse or oral intercourse (hereinafter referred to as "sexual intercourse") with another person'. Article 178 further implies that victims of sexual assault are required to resist their attackers.^[40]
• Kenya: The Sexual Offences Act, 2006 (effective 21 July 2006) states that 'a person consents if he or she agrees by choice, and has the freedom and capacity to make that choice.' Section 3 stipulates that sexual penetration without consent, or with consent 'obtained by force or by means of threats or intimidation of any kind', constitutes rape.^[41]
• Morocco: Article 485 of Moroccan's Penal Code (15 September 2011 revision) describes 'assault on decency' as a crime that is 'committed or attempted with violence against persons of either sex.' According to Article 486, 'Rape is the act by which a man has sexual relations with a woman against her will.'^[42] The current status of marital rape in Morocco is unclear, but most sources say it's legal.^{[43][44][45][46]} A Rabat Family Court decision in May 2022 may have set a precedent that will ultimately criminalise marital rape, however.^[47]
• Myanmar: Section 375 of the Myanmar Penal Code is derived from the same in the Indian Penal Code and states that 'a man is said to commit rape who (...) has sexual intercourse with a woman against her will' (1), 'without her consent' (2), when consent was obtained by coercion (3), when consent was obtained by identity deception (4), or when she was incapable of consenting due to her age being younger than 14 (5). Just like in the Indian Penal Code, marital rape is not criminalised.^{[law 4]}
• New Zealand: The Crimes Act 1961 was amended on 20 May 2005, with section 128 defining 'rape' as penetration by penis of someone's genitalia without their consent, and 'unlawful sexual connection' as any other sexual act without consent. Section 128A further stipulates in which scenarios a person is not capable of giving (genuine) consent.^[48][49]
• Nigeria: Although marital rape is explicitly excluded from the definition of rape in the Northern Nigeria Penal Code provided the spouse has reached puberty (Section 282(2)),^[50] and likewise excluded from Section 357 of the Nigerian Criminal Code (applying to the southern states),^[51] Section 357 of the Nigerian Criminal Code stipulates that any man who has sexual intercourse with any woman he is not married to 'without her consent' (1), when consent was obtained by coercion (2), when consent was obtained by 'false and fraudulent representation as to the nature of the act' (3), or when consent was obtained by identity deception (4), has committed rape.^[52]
• Pakistan: Section 375 of the Pakistan Penal Code is derived from the same in the Indian Penal Code and states that 'a man is said to commit rape who has sexual intercourse with a woman (...) against her will' (1), 'without her consent' (2), when consent was obtained by coercion (3), when consent was obtained by identity deception (4), or when she was incapable of consenting due to her age being younger than 16 (5). Unlike the Indian Penal Code, no reference is made to marriage, therefore marital rape is presumed to be criminalised as well.^{[law 5][53]}
• Peru: The Peruvian Penal Code (29 June 2022 revision) is mostly coercion-based, not recognising a lack of freely given consent as a constituent element its articles 170–175 on rape and sexual assault. In Article 176 and 176B on the lesser crimes of sexual fondling and harassment, a lack of freely given consent does play a central role.^[54]
• Philippines: Both the Anti-Rape Law of 1997 and the Anti-Violence Against Women and Their Children Act of 2004 criminalise rape, including marital rape, on the basis of coercion.^{[law 6][law 7]}
• Russia: Criminal Code of Russia Article 131 states: 'Rape, that is, sexual intercourse with the use of violence or with the threat of its use against the victim or other persons, or with the use of the helpless state of the victim.'^{[law 8]}
• South Africa: The Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007 (effective 14 December 2007) repealed the common law offences of rape and indecent assault and replaced them with the new expanded statutory offences of rape and sexual assault, applicable to all forms of sexual penetration or violation without consent, irrespective of gender. "Consent" is defined as 'voluntary or uncoerced agreement'.^[55]
• South Korea: Article 297 (Rape) states: 'A person who, through violence or intimidation, has sexual intercourse with a female'. Article 298 (Indecent Act by Compulsion) states: 'A person who, through violence or intimidation, commits an indecent act on another'. Article 299 (Quasi-Rape, Quasi-Indecent Act by Compulsion) states: 'A person who has sexual intercourse with a female or commits an indecent act on another by taking advantage of the other's condition of unconsciousness or inability to resist', implying that in other circumstances a victim should resist a sexual assault until overcome by the perpetrator's superior force.^[56] The Supreme Court of South Korea ruled that marital rape (described as 'forced sex with a spouse') was illegal in 2013.^[57]
• Sudan: Some attempts had been made under al-Bashir's rule (1989–2019) to reform legislation on issues such as extramarital rape victim blaming via 'adultery', and impunity for marital rape, by amending the definition of rape in Article 149.1 of the Criminal Code in February 2015. However, several commentators such as the African Centre for Justice and Peace Studies argued that this amendment had a number of flaws. Even though the amendment made it possible to prosecute marital rape by removing the reference to adultery, there is still no specific prohibition of marital rape, and oral rape is not criminalised. Moreover, Article 149.2 still defined adultery and sodomy as forms of 'rape', so complainants still risked being prosecuted for adultery or sodomy if they failed to prove they were subjected to sexual acts without their consent. Finally, the importance of consent was diminished in favour of coercion, going against the trend in international law to define sexual violence by lack of consent.^[58] On 22 April 2020, during the Sudanese transition to democracy, the sodomy law was amended: male participants in anal sex (sodomy, whether between two men or between a man and a woman, with or without consent) were no longer punishable by death or flogging, but still punishable by imprisonment.^[59]
• Tanzania: Section 5 of the 1998 Sexual Offences (Special Provisions) Act criminalises a male person having sex with a woman or girl without her consent, unless she is his wife (but if he and his wife are separated, it is criminal again).^{[law 9]}
• Thailand: Penal Code Amendment Act (No. 19) 2007 criminalised spousal rape in Section 3 (276), which describes rape as 'Anyone who forcibly performs sexual intercourse with another by threatening the latter in whatever manner, by exercising forcible violence, by taking advantage of the latter being in a state of irresistibility, or by causing the latter to mistake him for a different person'.^{[law 10]}
• Turkey: Article 102 – (Amended on 18 June 2014 – By Article 58 of the Law no. 6545) defines sexual assault as 'Any person who violates the physical integrity of another person, by means of sexual conduct'.^{[law 11]:39} According to a 2018 GREVIO report on Turkey, this definition was consent-based, because paragraph 2 stipulates that 'the use of force might entail the additional liability for felonious injury. It is not, therefore, a constituent element of the offence of sexual violence.' Article 102 also recognises marital rape. GREVIO hailed this as a major improvement over the previous coercion-based law, but noted the need to reform ways to prosecute marital rape via means other than only the victim's complaint.^[60]:77
• Uganda: Section 123 of the Penal Code states: 'Any person who has unlawful carnal knowledge of a woman or girl, without her consent, or with her consent, if the consent is obtained by force or by means of threats or intimidation of any kind or by fear of bodily harm, or by means of false representations as to the nature of the act, or in the case of a married woman, by personating her husband, commits the felony termed rape.'^[61] Although the Penal Code does not exempt marital rape, there is no clear criminalisation of it either. In customary law, there is a presupposition that a woman implicitly consents to sexual intercourse with her spouse during marriage.^[62][63]
• Uruguay: Consent plays no role in the Articles 272–277 about "carnal violence" (violencia carnal) in the Penal Code of Uruguay (2000 revision). Article 272 "Rape" (Violación) states: "A person commits rape who compels a person of the same or of the opposite sex, with violence or threats, to suffer carnal union, even if the act is not consummated." This wording implicitly criminalises marital rape. The article goes on to list four types of scenarios in which 'violence is presumed' to have taken place. Article 273 states that "Violent indecent assault is committed (...) through the means established in the previous article, or taking advantage of the circumstances set forth therein, [by performing] obscene acts (...) other than carnal union". Article 275 Estupro essentially describes rape by deception through a false promise of marriage to "a female maiden/virgin (mujer doncella) under the age of twenty years and over the age of fifteen years".^[64]
• Venezuela: The Penal Code of Venezuela (2005 revision) is almost entirely coercion-based. Article 374 sets out the conditions for rape: "Whoever by means of violence or threats has constrained any person, of one or the other sex, to a carnal act by vaginal, anal or oral route, or introduction of objects by any of the first two routes, or by oral an object that simulates sexual objects is introduced, the person responsible will be punished, as accused of rape, with a prison sentence of ten to fifteen years." It adds four types of scenarios in which 'violence or threats' are not necessary, but by definition constitute rape: (1) anyone with someone below the age of 13, (2) a relative abusing their familial ties with someone below the age of 16, (3) a prison guard with a detainee/prisoner, or (4) anyone with someone who is 'unable to resist due to physical or mental illness, or deception or narcotic/exciting substances' used by the perpetrator. 'Consent' only serves as lessening the perpetrator's punishment in very specific rape by deception cases under Article 378, and elopement cases under Article 384.^[65]
• Zimbabwe: Criminal Law (Codification and Reform) Act (2007) Section 65 states: 'If a male person knowingly has sexual intercourse or anal sexual intercourse with a female person and, at the time of the intercourse – the female person has not consented to it; and he knows that she has not consented to it or realises that there is a real risk or possibility that she may not have consented to it, he shall be guilty of rape.'^[23]:24