Introduction
In a plain and basic criminal law definition rape is an act of assault that involves sexual intercourse between the perpetrator and the victim, and in this case the perpetrator initiates and performs the act without the consent of the victim. In non-legal realms rape is alternatively referred to as sexual assault. These terms have subtle differences, but they do have technical distinctiveness in some jurisdictions. The definition of rape in other jurisdictions only entails vaginal penile penetration, whilst all other sexual activities are regarded as assault in the sexual sense.
Generally, sexual assault is a form of criminal assault which includes not only an act of rape, but also any other sexual activities that are non-consensual. Despite the variance of definitions under various jurisdictions there are two basic things that are common in all definitions, and these define what constitutes an act of rape. These two are the basic facts: that there was some form of sexual penetration by the perpetrator whether consensual or not as well as the lack of consent or agreement from the victim regardless of any circumstances surrounding the act.
Presence or absence of consent whether expressed or implied from the victim is of great significance in any rape allegation. However, it is important to note that the consent does not necessarily have to be expressed it may be implied depending on the contextual aspects surrounding the relationship of the victim and perpetrator. Similarly, it is important to note that the lack of objection from the victim may not in itself imply consent from the victim.
Therefore, whether a date rape or a violent rape; all acts are still rape activities and they should be treated equally with the only difference in handling these cases lying on the analysis and considerations of whether there was some form of consent from the victim or not (Shapcott, 1988).
There are various categories of rape basically defined in reference to the circumstances surrounding the act, and the characteristics or sex of the perpetrator and/ or the victim involved. These types include gang rape, incestual rape, war rape, date rape, violent rape, spousal rape-just to mention but a few. Penile penetration may not necessary for an act to constitute rape, because the perpetrator may use objects or hands to stimulate sexual organs. The alleged offender may also use drugs and activities such as hypnosis to make the victim incapacitated.
According to Shapcott (988) rape is done for various reasons including blackmail, sexual gratification, money, curiosity-just to mention but a few. In this paper the discussion on rape will focus on whether date rape and violent rape should be handled differently. In basic terms violent rape is the use of physical domineering whilst committing an act of rape by any perpetrator. There may be use of threats or physical force, however; an element of violence has to be present whether actually meted or not.
The act of violent rape may be done by a total stranger or a person familiar to the victim-in which case it may constitute a date rape depending on the manner in which the act was carried out. On the other hand, date rape is an act of alleged rape where the perpetrator has a level of acquaintance and/or some romantic relationship level with the allegedly raped victim (Abrahams et.al, 2003).
In these cases the two parties are not total strangers to each other. The involved parties meet in public set ups, where they gain confidence about each other before proceeding to a private set up such as homes or guest rooms on invitation. In this instances an actual date rape case may be committed through the use of drugs, hypnosis or through implied or expressed threats whether physical or verbal. It may also involve the use of force or taking advantage of incapacitated individuals in community such as the retarded (Abrahams et.al, 2003). Clearly in such instances there is no consent. For example a rape case involving a mentally retarded person or one under the influence of hypnosis or drugs, cannot be regarded as a milder case compared to a violent rape.
This is because, had the victim been alert and on their senses they would probably have resisted the advances and act, and probably lead to a violent rape. The effects of a date rape are equally devastating and can be used for the various reasons that the perpetrators envision. The fact that trust was betrayed and confidence lost makes it even more devastating to the victim. Date rape perpetrators that scheme to incapacitate their victims should not be in any way treated any different from violent rape perpetrators.
The fact that the ultimate harm of un-consented sexual act has already occurred does not warrant the date rape victim any fair or different treatment compared to a perpetrator of any act of violent rape (Myriam, 2004). In this sense, a similar treatment implies that the sentence offered to date rape offenders should be similar in magnitude and severity to that offered to violent rape victims. There should be no difference in the magnitude of the punishment offered.
However, the only difference, which may not even be termed as a difference is the fact that date rapes may have some misunderstandings resulting from the issue on implied consent. As such date rapes should be scrutinized for more explicit evidence that suggests that indeed there was no consent before the act. This is important because some alleged rape victims have been known to suggestively dress or act in a manner that drives the perpetrators to commit the act of sexual intercourse under the assumption that there is implied consent.
Some of these victims may at times put up last minute resistance (token resistance) with the aim of indicating that indeed they were raped (Myriam, 2004). These acts have been known to be enhanced to occur for the sake blackmail and malicious schemes to acquire money or sabotage the alleged perpetrators. Therefore, the more scrutiny required for date rapes compared to violent rapes which may obviously be evident in portrayal by physical harm.
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