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Rape

Rape is generally defined as forced or non-consensual sexual intercourse.

According to our law, there must be two elements present for an act to be considered to be rape, that is, there must be ‘violence’ and ‘carnal knowledge’

Facts and information: rape

In this case rape still subsists because the carnal connection is taken unlawfully and by means of indirect moral violence through his threats.
 

If the carnal connection was a consequence of any fraudulent device used by the offender this may also constitute rape. This implies that no consent is given. For example, if a person has been given drugs at a party and this led to non-consensual sexual acts, this may constitute rape.
 

If you have been a victim of crime in Malta it is recommended that once you are out of danger you file a report at the closest police station. You should give as many details as possible, as this will enable the identification of the perpetrator. With some crimes, once you have filed a report and the person responsible is identified, you can choose whether or not to press charges.
 

  • Malta Police Force (government) Address: Police General Headquarters, Pjazza San Kalċidonju, Floriana FRN 1530, Malta Phone: Headquarters 21224001/9; Crime stop 119; Emergency 112 E-Mail: cmru.police@gov.mt Web: www.pulizija.gov.mt

Carnal knowledge means that there must be some form of penetration of the genital organ into the body of another person. This penetration does not need to be deep or complete, as even slight penetration is enough. Oral penetration may also constitute rape.
 

There are a few questions to consider: There are some considerations in judging whether or not a sexual act is consensual (which means that both people are old enough to consent, have the capacity to consent, and agreed to the sexual act ).  In any case, it is always best to consult a professional to determine whether the act in question can be considered as rape in the eyes of the law.
 

Maltese law does not specifically cater for this, but it has been stated that if the person refuses to stop when consent is withdrawn, this may constitute rape by omission. It does not matter if you think your partner means yes, or if you’ve already started having sex - ‘no’ also means ‘stop’. If you proceed despite your partner’s expressed instruction to stop, you have not only violated basic codes of morality and decency, but you may have also committed the crime of rape under the laws of Malta.
 

The law also contemplates situations in relation to attempted rape. The Courts have held that the commencement of carnal connection means that there is completion of the offence of rape. However, the commencement of rape could take place before the commencement of penetration. These acts by the offender must clearly and undoubtedly be aiming for the offence of rape. Therefore attempted rape depends on the mental state of the offender, that is, whether he is aiming for rape at the end.
 

As a victim of a crime, you are entitled you a series of support services: (a) Information, advice and support relevant to the rights of victims including on accessing national compensation schemes for criminal injuries, and on their role in criminal proceedings including preparation for attendance at the trial; (b) Information about or direct referral to any relevant specialist support services in place; (c) Emotional and, where available, psychological support; (d) Advice relating to financial and practical issues arising from the crime; (e) Unless otherwise provided by other public or private services, advice relating to the risk and prevention of secondary and repeat victimisation, of intimidation and of retaliation.

The law obliges the state to ensure that victim support services to pay particular attention to the specific needs of victims who have suffered considerable harm due to the severity of the crime.

Support services are offered by various agencies. Victim Support Malta provides a specialised service for victims of rape and sexual assault -
Web: http://victimsupport.org.mt/sexual-assault-response-team/
 

A person convicted to having committed the offence of rape shall be liable to imprisonment for a term from three to nine years, with or without solitary confinement. If the offence is committed on a person under 12 years of age, or committed by a tutor or ascendant, the punishment is further increased by one degree. There are also other instances in the law, such as when the offence of rape is carried out within the context of domestic violence, where the punishment can be aggravated.
 

According to case-law, violence exercised on property of the victim is not sufficient, for instance, if the offender breaks down the door of the victim’s home and forces himself inside. However, if it is seen that forcing down the door was seen to be so threatening that the victim gave in to the carnal connection (penetration) without giving consent, this may possibly lead to rape since the carnal connection was accompanied with rape. Ultimately, it is the Court who must decide on a case by case basis. What is important is that there is a link between the violence and the unlawful carnal knowledge for an act to be considered rape.
 

Victim Support  Malta can help guide you through your next steps through the list of services available in Malta. Criminal proceedings in Court in the case of rape shall not be instituted except on the complaint of the victim. However, the police can proceed without the complaint of the victim if the rape was accompanied by public violence or an offence affecting public order. The complaint of the injured party may be withdrawn at any time during the proceedings. When this takes place, the proceedings in court will have to stop even if the proceedings had reached a very advanced stage.
 

The persons participating in the sexual act must have the mental and legal capacity to consent. Therefore  if the person abused was unable to offer resistance owing to a physical or mental infirmity/disability, even if he/she participated willingly in the carnal connection, this may still considered to be presumed violence and therefore rape.
 

If you go to the police to report your case, a comprehensive police report should be compiled, gathering all the details as you gave them to the police. You have a right to request a copy of the report.
 

Rape can still occur even within marriage if all the elements are present. The Court, in a Maltese case, held that it is certainly possible is some circumstances to have marital rape, in particular if they are either separated or divorced, or when there is some court order against one of the spouses from molesting the other spouse, or in the case of contagious diseases, or if the penetration goes against nature or exceeds the rights given in marriage consent.
 

Our law sets an ‘age of consent’ which is the minimum age someone must be to have sex. In Malta the age of consent is 18 years. This means that below a certain age they cannot legally agree to have sex.

The law provides that violence can be ‘presumed violence’. The law presumes that a person under 12 years of age is not capable of giving necessary consent, the reason being that children are too young and inexperienced to offer resistance, perhaps because they are unaware of the consequences of the action. Punishment is further increased if the victim has not completed the age of 9 years. It is not a defence for the offender to say that he was no aware of the victim’s age.

What happens if the minor is over 12 years of age?

In this case real violence (physical or moral) must still be proven as though an adult. However, in most cases there may be the offence of defilement still present.
 

Violence can be either physical or moral (which may include threats or other forms of coercion). Such physical or moral violence must be grave enough to force the victim to surrender one’s body to the offender. The severity of the violence needed in rape can vary from one person to another, as certain factors like age, temperament or others may be influential. Not giving consent to the offender is considered to be moral violence if he still proceeds to penetrate, and therefore satisfies the element of violence to constitute rape.

Ask for assistance! Some victims are at risk of being targeted and victimized during and possibly after criminal proceedings. Such a risk can be effectively identified through an individual assessment carried out at the earliest opportunity.

The assessment should be carried out for all victims to determine whether they are at risk of secondary or repeat victimisation. The individual assessment will take into account the victim’s personal characteristics such as his or her age, gender, religion, sexual orientation, disability, residence status, communication difficulties, relationship to or dependence on the offender and previous experience of crime.

Victims identified as vulnerable to repeat victimisation are entitled to individual protection measures in accordance with their needs. These protection measures will be identified during the individual assessment. Protection measures can include protection orders, restraining orders, ‘garanzija personali’, bail conditions, and accommodation in a shelter.

What if I do not want to file a Police report?
 
If you do not wish to file a Police report, you can still request support services.  Victim Support Malta provides a specialised services for victims of rape and sexual assault : http://victimsupport.org.mt/sexual-assault-response-team/