The countries which choose to ratify the Council of Europe Convention on preventing and combating violence against women and domestic violence, the first legally binding instrument in Europe in the field of violence against women, Originally, in Ancient Rome, 'rape' was a crime-defining primarily the act of a male abducting a female without the consent of the man under whose authority she was (typically father or husband); sexual intercourse was not necessary.
Furthermore, in many legal systems (such as 17th century France) the consent of the woman to sexual intercourse was not a defense - the act was still a crime if done without the consent of her father.
Rape is a type of sexual assault initiated by one or more persons against another person without that person's consent.
The act may be carried out by physical force, or where the person is under threat or manipulation, or with a person who is incapable of valid consent.
The common law crime of rape was collectively adopted by the American colonies in the seventeenth and eighteenth centuries.
This redefinition of rape had the effect of defining male rape.In accordance with contemporary standards and trends in that area, the member States' positive obligations under Articles 3 and 8 of the Convention [Convention for the Protection of Human Rights and Fundamental Freedoms] must be seen as requiring the penalisation and effective prosecution of any non-consensual sexual act, including in the absence of physical resistance by the victim." Some circumstances, such as where the victim is kidnapped or in detention, or under conditions of war or genocide, may be viewed as so coercive, that they presume non-consent altogether; for example in ICTY, The Prosecutor v.Kunarac, Kovac and Vukovic, it was ruled, in regard to the rape during the Bosnian War, where women were kept in detention centers, under extremely harsh conditions, and were selected for sex by soldiers and policemen, that [para 132]: "Such detentions amount to circumstances that were so coercive as to negate any possibility of consent".It is the name of a statutory crime in jurisdictions such as England and Wales, Northern Ireland, Scotland, California, and New York, and is a legal term of art used in the definition of the offence of sexual violation in New Zealand.Definitions of rape vary, and though rape is usually dependent upon whether or not consent was present during the act, Consent is also considered invalid if obtained under duress, or from a person who does not have the ability to understand the nature of the act, due to factors such as young age, mental disability, or substance intoxication.With a few notable exceptions, it was during the past 30 years when most laws against marital rape have been enacted.