From Women's Duty to Resist, to Men's Duty to Ask — How Far Have We Come

Abstract

Historically, the law of rape reflected women's inequality, in both its substance and process. The author argues that proof of a woman's great resistance to rape continues to play a pivotal role in the adjudication of criminal charges despite the many changes in legal doctrine achieved by the women's movement and judicial pronouncements to the contrary. Drawing upon cases decided after the 1992 reforms, which now require that men who claim mistaken belief in a woman’s consent have taken “reasonable steps” to ascertain consent, she shows how the "great resistance" requirement has been informally resurrected in those cases where women are asleep, passed out or otherwise unconscious.

Keywords: law of rape, women's inequality, rape, resistance to rape, criminal charges, legal doctrine, reforms, after 1992 reforms, consent, women's consent, great resistance requirement