The definition of “rape” varies by jurisdiction; it is not the same for every country. Although this is a sort of universal definition of “rape”:
The act of sexual penetration that is carried out using force or the threat of force, (I) against a person’s wishes, or (II) on a person who is legally incapable of giving consent (unconscious, juvenile, mentally retarded, intoxicated, paralyzed etc.)
There can be a situation where a supposed rape victim makes a rape allegation against someone, but it would be impossible to prove if "rape" took place
Case Scenario: A (male) meets B (female). B is above the legal age of consent.
A approches B. Then A gropes B. Then A undressed B and sexually penetrates B
The police later investigate the incident and ask B why she didnt try to resist or openly deny consent to A. B responds to the police, and says that she was "frozen in fear" and "didnt know what to do". So she just allowed A to have his way with her without trying to show any resistance
The police later ask A why did he attempt to sexually penetrate B. A responds and says he believes he received consent from B. A claims he was not aware that B had no wish to be sexually touched by him, and B did not openly state or indicate to A that she didnt want to be sexually touched by him at any point during the encounter
A also tells the police that he had no reason to believe B was incapable of openly denying consent to him, given the possibility that B may not have wanted to be sexually touched by A
A also tells the police he had no reason to assume that B is mentally retarded or physically disabled
B claims she did not give consent to A. But there is no evidence that B indicated or openly stated that she doesnt want to be sexually touched by A, nor is there evidence that B openly consented to A
The dilemma behind this hypothetical scenario about unwanted sexual penetration: If A believes they received consent from B, and B failed to at least indicate that they dont want to be sexually touched by A (by trying to show resistance to A), then was B raped by A?
By the generic standard for defining "rape", it is correct that A would've raped B
BUT although A sexually penetrated B against the wishes of B, it will be impossible to definitively prove that B was raped by A
The alternative can be applied to this situation as well - Imagine if B did in fact want to be sexually penetrated by A, but she also wanted to falsely accuse A of rape in order to satisfy some ulterior motive (ruin A’s social life / career prospects, receive large sum payment from A via out-of-court settlement etc.). It would also be impossible to prove that A is innocent of raping B, despite the fact that the rape allegation would have been falsely made by B against A
It isn’t always possible to prove whether sexual assault has taken place. A woman can be raped by a man, where there isnt enough evidence to prove the man is guilty of rape. Likewise, a man can be falsely accused of rape by a woman, where there isnt enough evidence to prove the man is innocent of rape
If A believes he had B's permission, and there's no evidence that (I) B openly denied consent to A, or (II) B showed signs of resistance to A, then there's a defence in favor of A against the rape allegation, cause it would be impossible to prove that A had the necessary knowledge for his actions to amount to sexual assault (i.e., the knowledge of B’s wish to not be sexually touched), regardless of whether or not A had the knowledge of B's wish to not be sexually touched during the encounter
To prove it was sexual assault, there must be evidence of A recognizing that B indicated her denial of consent to A, or openly denied consent to A. Physical inaction alone cannot indicate the denial of consent. If A believes that B gave consent to him, and A also has reason to believe that B has the physical and mental ability to deny or revoke consent in a clearly communicable way that's comprehensible to A (e.g., B was walking in a public space without using any device that would indicate she’s paralyzed or mentally disabled) , then it cannot be proven that B was raped by A, even though it would be a situation where B was raped by A
TL; DR: There are conditions where it will be impossible to prove whether sexual assault has taken place. Thus someone can be falsely accused of SA where it’s impossible to prove that person is innocent of SA, and someone can be a victim of SA where it's impossible to prove the perpetrator is guilty of SA
The act of sexual penetration that is carried out using force or the threat of force, (I) against a person’s wishes, or (II) on a person who is legally incapable of giving consent (unconscious, juvenile, mentally retarded, intoxicated, paralyzed etc.)
There can be a situation where a supposed rape victim makes a rape allegation against someone, but it would be impossible to prove if "rape" took place
Case Scenario: A (male) meets B (female). B is above the legal age of consent.
A approches B. Then A gropes B. Then A undressed B and sexually penetrates B
B does not want to be sexually penetrated by A, but:
- B fails to openly state or indicate that they do not want to be sexually penetrated by A
- B fails to show any sign of physical resistance to A's attempt to sexually penetrate her
The police later investigate the incident and ask B why she didnt try to resist or openly deny consent to A. B responds to the police, and says that she was "frozen in fear" and "didnt know what to do". So she just allowed A to have his way with her without trying to show any resistance
The police later ask A why did he attempt to sexually penetrate B. A responds and says he believes he received consent from B. A claims he was not aware that B had no wish to be sexually touched by him, and B did not openly state or indicate to A that she didnt want to be sexually touched by him at any point during the encounter
A also tells the police that he had no reason to believe B was incapable of openly denying consent to him, given the possibility that B may not have wanted to be sexually touched by A
A also tells the police he had no reason to assume that B is mentally retarded or physically disabled
B claims she did not give consent to A. But there is no evidence that B indicated or openly stated that she doesnt want to be sexually touched by A, nor is there evidence that B openly consented to A
The dilemma behind this hypothetical scenario about unwanted sexual penetration: If A believes they received consent from B, and B failed to at least indicate that they dont want to be sexually touched by A (by trying to show resistance to A), then was B raped by A?
By the generic standard for defining "rape", it is correct that A would've raped B
BUT although A sexually penetrated B against the wishes of B, it will be impossible to definitively prove that B was raped by A
The alternative can be applied to this situation as well - Imagine if B did in fact want to be sexually penetrated by A, but she also wanted to falsely accuse A of rape in order to satisfy some ulterior motive (ruin A’s social life / career prospects, receive large sum payment from A via out-of-court settlement etc.). It would also be impossible to prove that A is innocent of raping B, despite the fact that the rape allegation would have been falsely made by B against A
It isn’t always possible to prove whether sexual assault has taken place. A woman can be raped by a man, where there isnt enough evidence to prove the man is guilty of rape. Likewise, a man can be falsely accused of rape by a woman, where there isnt enough evidence to prove the man is innocent of rape
If A believes he had B's permission, and there's no evidence that (I) B openly denied consent to A, or (II) B showed signs of resistance to A, then there's a defence in favor of A against the rape allegation, cause it would be impossible to prove that A had the necessary knowledge for his actions to amount to sexual assault (i.e., the knowledge of B’s wish to not be sexually touched), regardless of whether or not A had the knowledge of B's wish to not be sexually touched during the encounter
To prove it was sexual assault, there must be evidence of A recognizing that B indicated her denial of consent to A, or openly denied consent to A. Physical inaction alone cannot indicate the denial of consent. If A believes that B gave consent to him, and A also has reason to believe that B has the physical and mental ability to deny or revoke consent in a clearly communicable way that's comprehensible to A (e.g., B was walking in a public space without using any device that would indicate she’s paralyzed or mentally disabled) , then it cannot be proven that B was raped by A, even though it would be a situation where B was raped by A
TL; DR: There are conditions where it will be impossible to prove whether sexual assault has taken place. Thus someone can be falsely accused of SA where it’s impossible to prove that person is innocent of SA, and someone can be a victim of SA where it's impossible to prove the perpetrator is guilty of SA
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