A/HRC/47/26 intercourse; 22 presented key concerns regarding the status of the criminalization and prosecution of rape, especially marital rape; and recommended that the definition of rape be based on the lack of consent, with an expanded scope to include all types of penetration. She reviewed issues such as the evidentiary requirements for corroborating a victim’s complaint; standards on prosecution of rape, including the use of a victim’s sexual history during trial and mechanisms to prevent revictimization; and the sentencing of rape.23 28. In the 25 years that followed, successive mandate holders have regularly addressed shortcomings in the criminalization of rape in their reports. 24 For example, on Nepal, the Special Rapporteur expanded recommendations on the prosecution of rape regarding the need to review strict statutes of limitation that precluded its prosecution.25 Having established that laws proscribing or imposing restrictions to abortion in cases of rape discriminate against women, the Special Rapporteur has recommended to Argentina and Ecuador that they legalize abortion in cases of rape.26 29. Other special procedures mandates holders and human rights treaty bodies have also fleshed out shortcomings in the criminalization of rape in their concluding observations, Views on individual communications and inquiries. Both the Committee against Torture and the Human Rights Committee have recognized rape as torture.27 30. Further progress has been achieved through the development of jurisprudence on specific cases of rape, as regional and international human rights bodies determined the specific nature of States’ obligation to criminalize and prosecute rape. At the regional level, the Inter-American Commission on Human Rights framed rape as torture under the InterAmerican Convention to Prevent and Punish Torture, and later developed the concept of rape as torture and a violation of women’s right to privacy under the American Convention on Human Rights. 28 The Inter-American Court of Human Rights has established in its jurisprudence that sexual violence practised by State actors and by non-State actors can be considered torture.29 31. Similarly, the European Court of Human Rights first made determinations with respect to rape as a violation of articles 3 (prohibition of torture) and 8 (right to respect for privacy and family life) of the Convention for the Protection of Human Rights and Fundamental Freedoms, and addressed the definition of rape in the landmark case M.C. v. Bulgaria in 2003. The Court established the positive obligation of States to enact criminal law provisions to effectively investigate and punish rape. The Court conducted a survey of domestic and international approaches to defining rape in criminal law, with the purpose of identifying any evolving trends in relation to standards that must be met to effectively criminalize rape. It noted a universal trend towards regarding lack of consent as the essential element of rape and sexual abuse, and explained that any rigid approach to the prosecution of those crimes, such as requiring proof of physical resistance, risked leaving certain types of rape unpunished and thus jeopardizing the effective protection of the individual’s sexual autonomy. It concluded that rape must be defined as any sexual penetration without the victim’s consent and that “consent must be given voluntarily, as a result of the person’s free will, assessed in the context of the surrounding circumstances”.30 22 23 24 25 26 27 28 29 30 6 E/CN.4/1997/47, para. 36. E/CN.4/1999/68. The mandate holders have called on countries that did not criminalize rape, such as Saudi Arabia (A/HRC/11/6/Add.3), to do so. A/HRC/41/42/Add.2. See A/74/137 and A/HRC/44/52/Add.2. Committee against Torture, general comment No. 2 (2007); Human Rights Committee, general comment No. 28 (2000). See Inter-American Commission on Human Rights, Martín de Mejía v. Peru, Report No. 5/1996, Case No. 10.970, Merits, 1 March 1996; and Ana, Beatriz and Celia González Pérez v. Mexico, Report No. 53/2001, Case No. 11.565, Merits, 4 April 2001. See Inter-American Court of Human Rights, Rosendo Cantú et al. v. Mexico, Judgment, 31 August 2010; and López Soto et al. v. Venezuela, Judgment, 26 September 2018. European Court of Human Rights, M.C. v. Bulgaria, Application No. 39272/98, Judgment, 4 December 2003, paras. 163 and 166.