Redefining rape : in light of the Istanbul Convention

Abstract

Throughout this research project, Article 198 of the Maltese Criminal Code entitled ‘Rape or carnal knowledge with violence’ shall be compared to Article 36 of the Istanbul Convention entitled ‘Sexual violence, including rape’. A prima facie, the primary difference between the two is the constituent element of rape, where the Maltese Criminal Code requires the element of violence, whereas the Istanbul Convention, on the other hand, entails the element of consent. The law, judgements and the opinion of legal authors is compared and analysed vis-à-vis the aforementioned two elements of violence and consent. The objective of this study is to explore the changes brought about with the ratification of the Istanbul Convention into Maltese law, particularly this shift in the constituent element of rape, and ultimately the broadening of the definition on what constitutes rape. A mindful mix of quantitative and qualitative research methods are used with the sole aim to fully encapsulate the authenticity of the local situation. Surveys have been distributed amongst police, lawyers, social workers, support group members of SOAR Malta (Surviving Abuse with Resilience), Victim Support Malta (VSM), as well as the local Sexual Assault Response Team (SART). A semi-structured informal interview was carried out on the 20 April 2016 with a member of the Maltese judiciary, Magistrate Dr Anthony Vella. All obtained results are incorporated into the fourth chapter of the project entitled ‘Methodology and Findings’, and thoroughly analysed. Finally, the conclusion of this project will then focus on recommendations on how the re-definition of rape ought to be brought about.