The Failure of Consent: Re-Conceptualizing Rape as Sexual Abuse of Power
Michigan Journal of Gender and Law, Vol. 18, No. 1, May 2011
82 Pages Posted: 3 Sep 2010 Last revised: 5 May 2011
Date Written: September 3, 2010
What is rape? What are the harms that the criminal prohibition on rape attempts to protect against and what values and rights does it attempt to promote? How should criminal law properly conceptualize the offense of rape? Does submission to sexual demands in professional and institutional settings in light of threats to inflict non-physical harms, such as economic and professional harms including firing or demotion, constitute rape? Scholars have been grappling with these questions for several decades, attempting to better align society’s perceptions about the criminal regulation of sexual misconduct with the ever-evolving social perceptions about sexuality and gender norms.
This Article argues that while rape law reform has accomplished significant changes in the past decades, it has since stalled. What might account for this stagnation is the turn to consent. This move has proven erroneous both empirically, as well as normatively. On the empirical level, consent-based models have failed to take hold in the majority of jurisdictions, resulting in a failure to affect instrumental change both in the courts as well as in social norms. On the theoretical level, the turn to consent is also unable to foster legal and social change because consent-based models are conceptually flawed and normatively misguided. The result is that rape, as defined by our criminal justice system, bears little resemblance to the various forms of sexual abuses that are inflicted on victims.
To address these drawbacks, this Article advocates the adoption of an alternative conceptual framework for rape that occurs in professional and institutional settings, such as the workplace, as an act of abuse of power and exploitation of dominance and control. This approach is not only more responsive to the complainants’ narratives and the harms inflicted upon them, but also better captures the wrongdoing in the perpetrator’s conduct. This Article thus proposes a conceptual overhaul that redefines rape in professional and institutional settings based on an abuse of power construct.
Keywords: Criminal Law, Rape Law, Law and Sexuality, Law and Gender
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