A/HRC/47/26 III. Gaps in the criminalization and prosecution of rape at the national level and recommendations for its prevention 65. The Special Rapporteur received 207 submissions to her questionnaire on the criminalization and prosecution of rape, covering 105 States across all regions. Responses were received from 46 Governments, 19 national human rights institutions and 142 other entities, comprising civil society organizations, international organizations, academia and others.55 66. In this section, the Special Rapporteur presents a brief overview of the gaps in the criminalization and prosecution of rape in various States, highlights applicable international standards and provides recommendations for the harmonization of national laws with international standards. A. Scope and constitutive elements of rape 1. Protected victims, acts of rape and exemption of marital rape 67. Historically, rape was criminalized as a gender-specific crime of the vaginal penetration of women only. Today, international human rights standards have expanded the scope of rape provisions to cover all persons and all acts of penetration of a sexual nature. 68. This shift towards the protection of all persons is also happening domestically, and in most States the definition of rape is gender-neutral, covering all persons. However, in approximately a third of States, the definition of rape is still a gender-specific crime covering only women victims.56 Those States often have separate criminal law provisions covering other victims, and in some States other offences that cover sexual violence committed against men and boys have often been sanctioned less severely than the offence of rape. 69. In many States, in accordance with international human rights standards, marital rape is criminalized. However, in a significant number of States, marital rape is explicitly excluded from criminalization. Historically, States first criminalized rape with a marital rape exemption, which was reproduced in many colonial laws. Changes were later made in parallel with international standards on rape, but not in all States. Today, a paradox exists in that these laws were changed in the countries where they originated, but were kept in their former colonies. Almost half of the 54 Commonwealth States still need to amend their legislation to remove the marital rape exception.57 70. Many States still exempt marital rape from criminalization, including the Bahamas, Bangladesh, India, Iraq, Jordan, Lebanon, Malaysia, 58 Nigeria, Samoa, South Sudan, Sri Lanka, the Sudan and the Syrian Arab Republic. 71. For instance, in India, marital rape is explicitly excluded from the offence of rape. The Criminal Law (Amendment) Act, 2013, by which important reforms to criminal provisions on sexual violence were introduced, retained the exception for marital rape. While it criminalized rape of lawfully separated partners, it introduced lighter prison sentences in that case. Likewise, in Nigeria, rape is defined in article 357 of the Criminal Code as “unlawful carnal knowledge of a woman or girl without her consent”, but “unlawful carnal knowledge” is defined in article 6 as “carnal connection which takes place otherwise than between husband and wife”, meaning that marital rape is explicitly excluded from the provision 55 56 57 58 12 The questionnaire and submissions are available at http://www.ohchr.org/EN/Issues/Women/ SRWomen/Pages/SRVAW.aspx. The information presented in this section is based on the submissions, which were received from April to December 2020. Changes that have taken effect since the submissions may not be reflected. Armenia, Azerbaijan, Bangladesh, Bulgaria, Cuba, Cyprus, Democratic People’s Republic of Korea, Egypt, Ghana, India, Indonesia, Jordan, Kazakhstan, Morocco, Myanmar, Nepal, Nigeria, Pakistan, Philippines, Russian Federation, Sri Lanka, Switzerland, Syrian Arab Republic, United Republic of Tanzania and Zimbabwe. See Sisters For Change, The Criminalization of Marital Rape. Ibid.