Recent rape law reform is most saliently characterised by a turn to gender neutrality in its definition of the crime of rape. The few possible advantages of a gender neutral approach to rape are offset by a series of disadvantages regarding gender justice when viewed from a feminist perspective. Formal gender neutrality does not safeguard against the effective influence of pervasive and enduring symbolic constructions pertaining to male and female sexuality and of a normalised hierarchical binary constructed (...) between the two sexes, in particular where sexual relations are concerned. Such efficacy may impede justice for both male and female victims of rape. The question about the place of sexual difference or rather sexual specificity within feminist theories of justice should be considered anew in light of this critical analysis of gender neutrality in rape law. (shrink)

These are women who are not only vulnerable but also evidently worthy of the protections or rewards promised: punishment of the rapist or the hero's love ...

American legal scholar MacKinnon held that using consent as the legal criterion to draw the line between rape and intercourse would evade the issue of male dominance in heterosexual relations. Feminist lawyers in the Netherlands and England and Wales translated the insight that rape has to do with inequality between the sexes in alternative definitions of rape. They also struggled to get these alternative definitions incorporated in law. However, in the Netherlands as well as in England and (...) Wales, feminist proposals to broaden the concept of coercion or non-consent to include submission met with serious obstacles from within the legal system. This article describes the process the feminist proposals to redefine coercion or non-consent in rape law went through in the Netherlands and in England and Wales. It tries to answer the following question: To what extent can the obstacles in this process of forming a broad definition of coercion be attributed to what MacKinnon called the inherent fallocentrism of law? (shrink)

This article charts a genealogy of marital rape law reform in South Australia in the 1970s, arguing that the new laws were based on constructing the marital rapist as a certain kind of man. South Australia is a significant case study, as it was one of the first Western jurisdictions to attempt to criminalise marital rape. Despite South Australia’s generally progressive politics, the legislation was highly contested, and resulted, in the end, only in a partial criminalization. To overcome (...) the strident opposition to rape law reform, we show that supporters explicitly developed a discourse focusing on concepts of sexual normativity and deviance. The marital rapist, it was argued, had deviated from patriarchal standards of masculine decency: this, not the rape itself, was crucial to determining whether his conduct was unlawful. (shrink)

In this paper I examine the presence of rape myths and gender stereotypes, and the norms of sexuality they reflect and reinforce, in Croatian rape laws, as exemplified by the recent practice of the Zagreb County Court. I begin with a general discussion of the gendered myths and stereotypes that have shaped the content and application of the criminal law of rape everywhere. I then briefly introduce the definition of rape under the 1997 Croatian Criminal Code (...) which was in force at the time of my research, after which I proceed to the critical analysis and the assessment of the Zagreb County Court practice. Next, I turn to the changes in the new Criminal Code to see how they address the identified problems. I offer a model of an affirmative consent standard, based on a communicative model of sexuality, which values reciprocal responsibility, communication and mutuality of sexual desire. I argue that this standard has greater potential to challenge rape myths and gender stereotypes and to promote sexual freedom and gender equality. (shrink)

Argument about changes in the law of rape are logically dependent upon a prior definitional account. For any legal definition of an act, one can sensibly ask if that definition is right. To know whether the law is sound, one must first understand of what it is that the definition is a definition. For many parts of the criminal law, and the law of rape is one, the definitions on which the law moves are concepts perfectly accessible outside (...) and apart from the law. I have two aims for this article. The first is to argue for a particular conception of rape as the best understanding of the constellation of acts we conceptualize as rape. The second, less direct, is to show that traditional methods of conceptual analysis can contribute to legal and social scholarship and reform. (shrink)

Rape conviction rates have fallen to all-time lows in recent years, prompting governments to explore a range of strategies to improve them. This paper argues that, while the current legal impunity for rape cannot be condoned, increasing conviction rates is not in itself a valid objective of law reform. The paper problematises the measure of rape law that conviction rates provide by developing an account of (some) feminist aims for rape law reform. Three feminist aims and (...) associated measures are explained—all of which look beyond conviction rates to qualitative and victim-centred outcomes of criminal justice processes. Applying these measures, I argue that strategies designed solely to increase conviction rates are more likely to work against, rather than in support of, feminist aims. The paper thus underscores the need for continued feminist engagement with rape law reform, broadly conceived, notwithstanding its acute limitations for feminist anti-violence politics. (shrink)

Matoesian uses the 1991 rape trial of William Kennedy Smith to provide an in-depth analysis of language use and its role in that specific trial as well as the law in general. Examining both defense and prosecutorial linguistic strategies, he shows how language practices shape--and are shaped by--culture and the law.

New York defines rape as forced penile vaginal penetration, which means only women can be rape victims. Given this definition, rape should always be considered a type of hate crime and thus eligible for sentencing enhancement because the perpetrators target victims based on their group membership. Such a narrow definition of rape is problematic because it fails to acknowledge oral and anal rape and overlooks the fact that men can also be raped. I argue that (...) regardless of the type of sexual assault that occurs, rape should be considered a hate crime when the rapist chooses the victim based on gender, gender identity, and/or sexual orientation and the rape reinforces the patriarchal and heteronormative hegemony. (shrink)

In an article recently published in the Oxford Journal of Legal Studies, the legal scholar Helen Reece argues that the prevalence and effects of rape myths have been overstated and the designation of certain beliefs and attitudes as myths is simply wrong. Feminist researchers, she argues, are engaged ‘in a process of creating myths about myths’ in a way that serves to close down and limit productive debate in this ‘vexed’ area. In this article we argue that Reece’s analysis (...) is methodologically flawed, crudely reductionist and rhetorically unyielding. We locate Reece’s analysis within the wider theoretical field to show how her failure to engage with feminist literature on rape other than in the narrowest, most exclusionary terms, yields an approach which impedes rather than advances public understanding and panders to a kind of simplistic thinking which cannot begin to grapple with the complexity of the phenomenon that is rape. We conclude by emphasizing the continuing commitment of feminist researchers carefully to theorize and map the fraught field of progressive legal strategizing in order to identify and counter the kinds of risks and shortcomings of political activism with which Reece is rightly concerned. (shrink)

It is a truism of modern discussions of Athenian law and oratory that the Athenians regarded adultery as a more heinous offence than rape. This consensus has been challenged in a valuable paper by E. M. Harris. But although Harris has successfully placed in question a number of assumptions about this area of Athenian law and ethics, I wish to argue that the traditional position is in its broad outlines correct. In this as in so many aspects of Athenian (...) law it is difficult to make firm statements. Firstly, for the Athenian system as a whole we lack evidence for many issues of legal prescription and procedure for the period before the restoration of the democracy, and our evidence is frequently lacunose even for the period after the restoration. As a result we are presented with a ‘snapshot’ of the Athenian system at a particular stage in its development and are rarely able to trace chronological developments in detail and frequently unable to trace them in broad outline. A further result of this ‘snapshot’ effect is a false impression of coherence. Legislative measures belonging to different periods are likely to present themselves as the result of an integrated design rather than the product of accretion. Finally, and most importantly, our sources distort. Occasionally they provide information on the laws and on legal procedure in passing, in order to contextualize an argument or narrative; but in general they are presenting us with information in an attempt to persuade. (shrink)

International criminal tribunals established by the UN Security Council in the 1990s have been widely acclaimed as active participants in the modern system of dynamic criminal justice. One of their best known achievements is the prosecution of rape and sexual assaults. The International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) set an example for other tribunals to follow. By interpreting a variety of international laws, the community of international legal professionals has (...) been able to shift the prevailing understanding of rape and sexual violence away from that of an “unfortunate byproducts of war.” Not only has the epistemic community of legal professionals been able to end impunity for these crimes, but case-law of international tribunals has become a basis for subsequent trials at quasi-international tribunals. Decisions of the tribunals have been instrumental in drafting the Statute of the International Criminal Court and can be regarded as an example of the formation of new international norms by means of judicial decisions. (shrink)

Soon there will be sex robots. The creation of such devices raises a host of social, legal and ethical questions. In this article, I focus in on one of them. What if these sex robots are deliberately designed and used to replicate acts of rape and child sexual abuse? Should the creation and use of such robots be criminalised, even if no person is harmed by the acts performed? I offer an argument for thinking that they should be. The (...) argument consists of two premises. The first claims that it can be a proper object of the criminal law to regulate wrongful conduct with no extrinsically harmful effects on others. The second claims that the use of robots that replicate acts of rape and child sexual abuse would be wrongful, even if such usage had no extrinsically harmful effects on others. I defend both premises of this argument and consider its implications for the criminal law. I do not offer a conclusive argument for criminalisation, nor would I wish to be interpreted as doing so; instead, I offer a tentative argument and a framework for future debate. This framework may also lead one to question the proposed rationales for criminalisation. (shrink)

Stephen Schulhofer's book, Unwanted Sex: The Culture of Intimidation and the Failure of Law, provides a carefully constructed and powerful case for rape-law reform. His effort is distinctive in three ways: (1) it takes the basic question of reform to be the moral one of determining which sexual interactions ought to be the subject of the criminal law, (2) it takes the right of sexual autonomy to serve as the basis for any successful legal reform, and (3) it makes (...) a philosophically sophisticated case for his own reform proposal. Schulhofer's efforts should be of great interest to philosophers, especially feminist legal philosophers, interested in questions that bear direct relevance to the relationships between autonomy, coercion, and consent as constrained by the requirements of due process. His careful and scrupulously fair discussion of influential reform recommendations set the stage for his own position (discussed in section VII), a critical evaluation thereof (sections VII and VIII), and sympathetic recommendations in VIII and IX. Of special value here is Schulhofer's attempt to extend his analysis of coerced consent to include certain "offers" made in contexts (e.g., the workplace) characterized by significant power differentials between persons. Section IX offers suggestions, generally friendly to Schulhofer's overall reform proposals, for identifying wrongful sexual interactions occurring in certain institutional or professional contexts. (shrink)

2013 marks 10 years since the Sexual Offences Act 2003 was passed. That Act made significant changes to the law of rape which appear now to have made very little difference to reporting, prosecution or conviction rates. This article argues that the Act has failed against its own measures because it remains enmeshed within a conceptual framework of sexual indifference in which woman continues to be constructed as man’s other. This construction both constricts the frame in which women’s sexuality (...) can be thought and distorts the harm of rape for women. It also continues woman’s historic alienation from her own nature and denies her entitlement to a becoming in line with her own sexuate identity. Using Luce Irigaray’s critical and constructive frameworks, the article seeks to imagine how law might ‘cognise’ sexual difference and thus take the preliminary steps to a juridical environment in which women can more adequately understand and articulate the harm of rape. (shrink)

England and Wales have recently experienced wide-ranging rape law reform and a galloping rape reporting rate but no comparable increase in rape convictions, leading many erstwhile law reformers to turn attention to attitudes. In essence, their argument is that reform has proved relatively ineffective because a range of agents hold ‘rape myths’. Despite the broad consensus that this approach has attracted, I argue that the regressiveness of current public attitudes towards rape has been overstated. The (...) claim that rape myths are widespread may be challenged on three grounds: first, some of the attitudes are not myths; secondly, not all the myths are about rape; thirdly, there is little evidence that the rape myths are widespread. To a troubling extent, we are in the process of creating myths about myths. This process functions to close down, not open up, the possibilities of a productive public conversation about important and at times vexed questions. (shrink)

This paper addresses the question of whether rape-law reform should treat all cases of simple rape—nonconsensual sex that does not involve the use or credible threat of physical force—as a serious crime. Of primary concern here are those sexual interactions, often referred to as “date rape” or “acquaintance rape,” where the coercive element is not physical force as evidenced by reasonable resistance. Should, as some feminist reformers have urged, felony rape include sexual interactions that may (...) not be fully consensual but do not include the use of physical force? If so, can convincing answers be provided for due process questions about what constitutes valid consent to sex and how to tell when it is present. This paper warns of the difficulties in determining what counts as evidence of nonconsent and mens rea in light of the “linkage thesis” which takes valid consent in these cases to be bilateral and interactive, and to imply the absence of mens rea. Given the complexity of norms governing these sexual interactions and the high likelihood of reasonable mistakes about consent, this paper contends that criminalizing these cases of simple rape will often result in the unjust treatment of the relevant parties. (shrink)

This paper shows how the mythology surrounding rape enters into a criterion of reasonableness which operates through the legal system to make women vulnerable to unscrupulous victimization. It explores the possibility for changes in legal procedures and presumptions that would better serve women's interests and leave them less vulnerable to sexual violence. This requires that we reformulate the criterion of consent in terms of what is reasonable from a woman's point of view.

One of the most significant shifts in current thinking on war and gender is the recognition that rape in wartime is not a simple by-product of war, but often a planned and targeted policy. For many feminists ‘rape as a weapon of war’ provides a way to articulate the systematic, pervasive, and orchestrated nature of wartime sexual violence that marks it as integral rather than incidental to war. This recognition of rape as a weapon of war has (...) taken on legal significance at the Rwandan and Yugoslav Tribunals where rape has been prosecuted as a crime against humanity and genocide. In this paper, I examine how the Rwanda Tribunal’s record of judgments conceives of rape enacted as an instrument of the genocide. I consider in particular how the Tribunal’s conception of ‘rape as a weapon of war’ shapes what can be known about sexual violence and gender in the Rwandan genocide and what cannot, the categories of victims legally recognised and those that are not, and the questions pursued, and those foreclosed, about the patterns of violence before and during the genocide. (shrink)

Moral responsibility theorists and legal theorists both worry about what negligence is, and how it might be a ground of blameworthiness. In this paper I argue that negligence suitably understood, can be an appropriate grounds for mens rea in rape cases. I am interested in cases where someone continues with sex in the mistaken belief that the other person consents. Such a mistaken belief is often unreasonable: a wilfully blind agent, one who deliberately ignores evidence that there is no (...) consent, is clearly not exculpated by his ignorance. However, there may be circumstances in which a man’s mistaken belief in consent is reasonable in the circumstances, then he is not culpable. Thus it is important to be clear about what we mean by a reasonable mistake. Many critics (e.g. Duff, Baron and others) have argued that it is not possible to make a reasonable mistake about consent, that any such mistake must involve culpable carelessness. Consent is so important that we should always double check. Not to do so is reckless, and in that case there is clearly culpability. In this paper I argue that it is possible to make a mistake that is reasonable, at least in one sense. Someone in the grip of sexist ideology might not understand how important consent is, and not through carelessness, but through sexist ideology that they have non-culpably and non-voluntarily absorbed. In that case it is not obvious that the man is culpable. I go on to argue that so far as the law is concerned, there is good reason to hold that even those who have ‘reasonable’ beliefs culpable. Having a reasonable belief in consent may be, but is not always exculpatory. We usually think a reasonable mistake does not count as negligence because a reasonable mistake is not failing to know something that you should have known. I argue that we should understand negligence—not knowing something you should have known—in a moralized sense, so that people who are ignorant through being ideologically blinded can be held to have the mens rea requisite for rape conviction. -/- . (shrink)

In the law of rape, consent has been and remains a gendered concept. Consent presumes female acquiescence to male sexual initiation. It presumes a man desires to penetrate a woman sexually. It presumes the woman willingly yields to the man's desires. It does not presume, and of course does not require, female sexual desire. Consent is what the law calls it when he advances and she does not put up a fight. I have argued elsewhere that the kind of (...) thin consent that the law focuses on is not enough ethically and it should not be enough legally to justify sexual penetration. I advocate sexual negotiation, where individuals discuss sexual desires and boundaries and agree to engage in penetration before it occurs, except under circumstances in which the partners have a reasonable basis to assess one another's nonverbal behavior. I argue that not only is verbal consultation about desire ordinarily ethically necessary before most acts of sexual penetration, it should be legally required. Consultation to ascertain sexual desires and boundaries assures that both parties desire penetration. (shrink)

Standards of reasonability play an important role in some of the most difficult cases of rape. In recent years, the notion of the “reasonable person” has supplanted the historical concept of the “reasonable man” as the test of reasonability. Contemporary feminist critics like Catharine MacKinnon and Kim Lane Scheppele have challenged the notion of the reasonable person on the grounds that reasonability standards are “gendered to the ground” and so, in practice, the reasonable person is just the reasonable man (...) in a gender neutral guise. These critics call for the explicit employment of a “reasonable woman” standard for application to the actions of female victims of rape. But the arguments for abandoning a gender-neutral standard are double-edged and the employment of gendered standards of reasonability is likely to have implications that are neither foreseen by, nor acceptable to, advocates of such standards. Reasonable agent standards can be dropped, in favor of appeals to the notion of a “reasonable demand (or expectation)” by the law. However, if reasonable agent standards are to be retained, gendered versions of such standards are not preferable to gender-neutral ones. (shrink)

Standards of reasonability play an important role in some of the most difficult cases of rape. In recent years, the notion of the reasonable person has supplanted the historical concept of the reasonable man as the test of reasonability. Contemporary feminist critics like Catharine MacKinnon and Kim Lane Scheppele have challenged the notion of the reasonable person on the grounds that reasonability standards are gendered to the ground and so, in practice, the reasonable person is just the reasonable man (...) in a gender neutral guise. These critics call for the explicit employment of a reasonable woman standard for application to the actions of female victims of rape. But the arguments for abandoning a gender-neutral standard are double-edged and the employment of gendered standards of reasonability is likely to have implications that are neither foreseen by, nor acceptable to, advocates of such standards. Reasonable agent standards can be dropped, in favor of appeals to the notion of a reasonable demand by the law. However, if reasonable agent standards are to be retained, gendered versions of such standards are not preferable to gender-neutral ones. (shrink)

The aim of this paper is to discuss a selection of Japanese rape-related terminology and their potential equivalents in English and Polish. In this article the author will present an analysis of chosen rape-related terminology which is present in legislation and other legal texts, as well as in the media. Firstly, the definitions of selected terms will be provided; next, potential equivalents from the British, American, and Polish legal systems will be chosen in order to carry out comparative (...) linguistic analysis. Finally, conclusions will be drawn on whether there are near, partial, or no equivalents in the languages under scrutiny. (shrink)

In Athens and other ancient cultures, a woman, whatever her status and whatever her age or social class, was, in law, a perpetual minor. Throughout her life, she was in the legal control of a guardian who represented her in law. Rape, as unlawful carnal knowledge of a woman, warranted a capital charge in the Graeco-Roman world. It still carries a capital charge in some societies and is considered a felony in others. As for adultery, it may be prosecuted (...) in some cultures while in others it is a matter to be decided by the family council. This paper examines laws concerning the abuse of and exploitation of women in ancient and modern societies, especially within the context of their biologically determined roles and sexual culture. It also seeks to establish the socio-legal rights of women, especially those who were traumatised and sexually abused. The research method is mainly content analysis. It employs sources such as legal evidence in the form of recorded speeches of the Attic orators along with literary accounts, historical or legendary and epigraphic inscriptions. (shrink)

This article is a defence of a differentiated offence of rape. A differentiated offence is an offence which can be completed in a number of different ways that cannot be captured in a simple definition. It is argued that such an offence would meet several concerns that have been expressed in the feminist literature about the law of rape. It would assist certainty, it would reduce the extent to which the offence focuses on the conduct of the complainant, (...) it would allow the law to express that violence is central to the offence of rape where violence is present, but it would also allow convictions of rape where there is no violence. The argument is developed through critical engagement with the law of rape as set out in the Sexual Offences Act 2003. The Sexual Offences Act, it is argued, fails adequately to meet the concerns outlined above. (shrink)

How can we eradicate violence against women? How, at least, can we reduce its prevalence? One possibility offered by Catharine MacKinnon is to harness international human rights norms, especially prohibitions on torture, and apply them to sexual violence with greater rigour and commitment than has hitherto been the case. This article focuses particularly on the argument that all rapes constitute torture in which states are actively complicit. It questions whether a feminist strategy to reconceptualise rape as torture should be (...) pursued, suggesting that we retain the label ‘rape’ due to its gendered meaning and powerful associations. It is also claimed that we may lose sight of the commonality of rape in calling it torture, as well as obscuring the varied responses of women survivors. Finally, the article canvasses the idea that we recognise the different circumstances and contexts in which rape takes place, which may mean different criminal offences for different rapes; for example, preserving the label ‘torture’ for those rapes in which state officials are participants. (shrink)

One of the dominant themes of the symposium from which this collection of articles arose was the ontological status of consent. Is consent a particular state of mind? Is it the signification of that state of mind via a conventionally recognized act? Or, is consent a normative concept that evaluates not only the presence of a state of mind or act, but also the appropriateness of that state of mind or act in the particular circumstances?

Standards of reasonability play an important role in some of the most difficult cases of rape. In recent years, the notion of the ``reasonable person'' has supplanted the historical concept of the ``reasonable man'' as the test of reasonability. Contemporary feminist critics like Catharine MacKinnon and Kim Lane Scheppele have challenged the notion of the reasonable person on the grounds that reasonability standards are ``gendered to the ground'' and so, in practice, the reasonable person is just the reasonable man (...) in a gender neutral guise. These critics call for the explicit employment of a ``reasonable woman'' standard for application to the actions of female victims of rape. But the arguments for abandoning a gender-neutral standard are double-edged and the employment of gendered standards of reasonability is likely to have implications that are neither foreseen by, nor acceptable to, advocates of such standards. Reasonable agent standards can be dropped, in favor of appeals to the notion of a ``reasonable demand (or expectation)'' by the law. However, if reasonable agent standards are to be retained, gendered versions of such standards are not preferable to gender-neutral ones. (shrink)

The reform of rape law remains a vexed enterprise. The wager of this article is that the plural traditions and technologies of criminal law can provide the resources for a radical rethinking of rape law. Parts 1 and 2 return to the historical and structural forms of rape law reform in Australia. These forms of reform illustrate a variety of criminal jurisdictions, and a transformation in the way in which rape law reform is conducted now. Against (...) this transformation, Part 3 takes up the technology of classification in rape law in order to generate a radical legal definition of rape—one which responds to the pain and suffering of the survivor of rape, at the same time as it holds the legal institution before the law. This has important implications, it is suggested, not only for domestic legal systems but also the jurisprudence of rape in international criminal law. (shrink)

The distinction between 'kill' and 'help to die' is argued by analogy with the distinction between 'rape' and 'make love to'. The difference is the consent of the receiver of the act, therefore 'kill' is the wrong word for an act of active voluntary euthanasia. The argument that doctors must not be allowed by law to perform active voluntary euthanasia because this would recognise an infringement of the sanctity of life ('the red light principle') is countered by comparing such (...) doctors with the drivers of emergency vehicles, who are allowed to drive through red lights. (shrink)

This paper sets out to read how gender is produced in changes to the law of rape introduced in the Criminal Justice and Public Order Act 1994 and in critical academic discussions reflecting on these changes. It utilises the work of Judith Butler in order to form an understanding of how the gendered subject is produced in rape law and in academic discussions about rape law. Through Butler's idea of gender performativity,it contends that neither the statute nor (...) the critique of the legal changes (as represented in academic writings) produce any radical `transformation' in rape law. In neither instance does the law or its critique challenge the normative understanding of gender as the cultural formation of `sex'. Rather, both discourses sustain and maintain what Butler calls ``heterosexual hegemony''. As the final section or the postscript of the paper suggests, there are moments in judgements when the identified subject exceeds the marking and exposes the limits of the hegemonic logic. This exposition can serve as an opening in which, as Butler argues, the politics of resistance can create the possibility of an embodied justice. (shrink)

The issue of acquaintance rape has been gaining increased prominence in recent years. In this book Joan McGregor analyses the ethical and legal problems that arise in connection with acquaintance rape cases. She discusses with great clarity and precision the complexities involved in notions such as consent, force, autonomy, power, intention and the impairment of responsibility through drugs, alcohol and mental illness. Arguing that criminal rape laws are too narrow, capturing only cases where there is clearly recognized (...) physical violence and resistance from the victim, she sets out a new proposal for how the criminal law should deal with cases of nonconsensual sex which captures the ideals of a liberal political society and in particular the idea of equality. This book explains fully what it means when a woman says no and means no. (shrink)

This paper sets out to read how gender is produced in changes to the law of rape introduced in the Criminal Justice and Public Order Act 1994 and in critical academic discussions reflecting on these changes. It utilises the work of Judith Butler in order to form an understanding of how the gendered subject is produced in rape law and in academic discussions about rape law. Through Butler's idea of gender performativity,it contends that neither the statute nor (...) the critique of the legal changes (as represented in academic writings) produce any radical `transformation' in rape law. In neither instance does the law or its critique challenge the normative understanding of gender as the cultural formation of `sex'. Rather, both discourses sustain and maintain what Butler calls ``heterosexual hegemony''. As the final section or the postscript of the paper suggests, there are moments in judgements when the identified subject exceeds the marking and exposes the limits of the hegemonic logic. This exposition can serve as an opening in which, as Butler argues, the politics of resistance can create the possibility of an embodied justice. (shrink)

From the American Law Institute to college campuses, there is a renewed interest in the law of rape. Law school faculty, however, may be reluctant to teach this deeply debated topic. This article begins from the premise that controversial and contested questions can be best resolved when participants understand the conceptual architecture that surrounds and delineates the normative questions. This allows participants to talk to one another instead of past each other. Accordingly, in this article, we begin by diffusing (...) two non-debates: the apparent conflict created when speakers use “consent” to mean two different things and the question of whether rape law ought to be formulated in terms of consent or force. From here, we turn to the conceptual apparatuses that surround the normative questions of freedom from force, knowledge, and capacity. Here, we suggest how better understanding these concepts can frame the underlying discussions as to what sorts of coercion undermine consent, what kinds of deception invalidate consent, and when the victim is too incapacitated to consent. Finally, we turn to different formulations of consent, demonstrating that one conception better captures the harm of rape but that other formulations may better protect victims. We show how clarifying these questions allows discussants to see why different formulations are valuable and to debate the best all-things-considered formulation. Although this article is framed as a question of how to think like lawyers about rape, its ambition is to set forth a framework that is useful to reformers as well. (shrink)

Feminists are divided on whether consent should be employed in legal definitions of rape. Catharine MacKinnon has criticized the usefulness of consent in enabling legal systems to recognize and prosecute instances of rape (MacKinnon 1989, 2005, 2016). In a recent article in this journal, Lisa H. Schwartzman defends the use of affirmative consent in rape law against MacKinnon’s critique (Schwartzman 2019). In contrast to MacKinnon, Schwartzman claims our understanding of rape must include both force and consent (...) components. In this paper, I will argue in agreement with Schwartzman and against MacKinnon that the legal definition of rape should include an affirmative consent component. I will take Schwartzman’s discussion as my point of departure and consider whether she has responded adequately to MacKinnon’s criticisms of consent. I will argue that her responses are not fully adequate. In particular, she has not successfully rebutted the argument that an appeal to consent is unnecessary once we have accepted an expanded definition of coercion. I will then provide a more affirmative defense of affirmative consent in response to MacKinnon’s most challenging criticism. (shrink)

This article examines the notion of gender neutrality in rape, its meaning and why rape definitions that include females and males as potential victims of rape have become influential in those jurisdictions that have engaged in significant levels of rape law reform over the last four decades. In so doing, several of Annabelle Mooney’s criticisms of gender neutral rape laws, published in an earlier article, will be critically examined. The second part of this article draws (...) on themes that have been identified in the linguistic analysis of rape trials involving female complainants and applies those themes to two cases of rape and sexual assault involving male complainants. Finally, this article examines whether the tactics used by defence lawyers during cross-examination can be said to be uniquely ‘gendered’ or whether similar tactics exist in cases of male rape and sexual assault. Explanations for possible similarities in treatment are also examined. (shrink)

Sometimes persons are legally responsible for reckless behavior that causes criminal harm. This is the case under the newly drafted provisions of the U.S. Model Penal Code (MPC), which holds persons responsible for “simple” rape (nonconsensual sex without proof of force or threats of force), where the offender recklessly disregards the risk that the victim does not consent. In this paper we offer an explanation and corrective critique of the handling of reckless rape cases, with a focus on (...) the U.S. criminal justice system, although our analysis is applicable more broadly. We argue that a wider group of reckless rapists are criminally responsible than is captured by the MPC and claim criminal punishment of reckless rapists must be justified by looking to both moral desert and instrumental aims achieved by criminal punishment. Part of the law’s job is to communicate and enforce society’s expectations regarding unacceptable behavior. In punishing reckless rape, we are not just giving people what they deserve, but also reinforcing and shaping norms regarding sexual behavior. (shrink)