A/HRC/47/26 78. In Czechia, for example, rape provisions under section 185 (1) of the Criminal Code apply to the following: “Whoever forces another person to have sexual intercourse by violence or by a threat of violence, or a threat of other serious detriment, or whoever exploits the person’s vulnerability for such an act.” 79. Likewise, article 149 of the Criminal Code of Azerbaijan defines rape as “sexual relations with application of violence or with threat of its application to the victim [or] to other persons, or with use of a helpless condition of the victim”. 80. Similarly, article 222-23 of the Criminal Code of France provides that any act of sexual penetration, of any nature whatsoever, of another person or of the perpetrator, by violence, coercion, threat or surprise, constitutes rape. 81. Another important feature of consent is the age of sexual consent, which is among the most contentious issues related to the criminalization of rape. Usually, States set the minimum age of sexual consent through the criminalization of rape of children under a specific age, when consent is not relevant since they are not deemed capable of giving it. Criminal laws criminalize this type of rape as “statutory rape”, by establishing, for example, that any sexual act with an individual below the age of 16 constitutes statutory rape, with exceptions when there is a maximum of three years’ age difference. 82. According to the responses to the questionnaire, the majority of States set the legal age of sexual consent at 15, 16 or 18 years. 83. However, in some States the age of sexual consent is very low, at 12 to 14 years old or even lower, or there is no legal age of sexual consent. The latter is the case in France, where there is a clear reference in legislation to the age of the victim for the misdemeanour of sexual assault, but not for the crime of rape. A bill passed in March 2021 in the National Assembly would set the age of consent at 15, and still had to be passed in the Senate at the time of writing of this report. 84. In some States, particularly in Latin America, criminal law provisions establish the crime of estupro, which usually describes cases in which an adult has sexual relations with a minor above the legal age of consent by means of seduction or deceit. This is the case, for instance, in Ecuador, where the legal age of consent is 14. The estupro provisions apply to cases in which an adult has sexual relations, by means of deceit, with a child older than 14 and younger than 18, imposing a sentence of 1 to 3 years’ imprisonment, while rape and statutory rape are punishable by 19 to 22 years’ imprisonment. Likewise, in Nicaragua, while rape is punishable with sentences ranging from 8 to 12 years’ imprisonment, estupro (defined as carnal knowledge, by means of deceit, of a person older than 14 and younger than 16) is punishable by 3 to 5 years’ imprisonment. The existence of a less severe offence involving teenage girls contributes to the impunity of rapists, as evidence suggests that rapists tend to be charged with the lesser offence instead of rape, if they ever face prosecution. 85. The Special Rapporteur makes the following recommendations: (a) States should explicitly include lack of consent at the centre of their definition of rape. Force or threat of force provide clear evidence of non-consent, but force is not a constitutive element of rape. States must specify that consent must be given freely, as a result of the person’s free will, assessed in the context of the surrounding circumstances. Intercourse without consent should be criminalized as rape in all definitions; (b) Criminal provisions on rape should specify the circumstances in which determination of lack of consent is not required or consent is not possible; for example, when the victim is in an institution such as a prison or detention centre, or is permanently or temporarily incapacitated owing to the use of alcohol and drugs; (c) Legislation criminalizing rape should establish that consent of children below the age of 16 is immaterial,60 and that any sexual intercourse with an individual below the age of consent is rape (statutory rape), where determination of lack of consent is not required. 60 14 States should set the age of consent at 15 or 16 years, according to the local context, but not below 15 years.