Article 36: Sexual violence, including rape

Article 36 of the Istanbul Convention requires State Parties to criminalize sexual violence, including rape. Structured into three paragraphs, this provision lists different conducts falling under the definition of sexual violence; it identifies the lack of consent as the central element of the crime and states that intimate partner and marital rape shall be prohibited and punished under domestic criminal law. After a few preliminary remarks on the relevance of international case-law for the identification of sexual crimes as human rights violations, the analysis addresses legal definitions and their critical elements and considers the phenomenon of rape in marriage (or in other intimate relations), as well as the evolution of its prosecution. It finally details States’ positive obligations deriving from Article 36 of the Istanbul Convention.