How to Think (Like a Lawyer) About Rape

Criminal Law and Philosophy (Forthcoming)

61 Pages Posted: 24 Aug 2016

See all articles by Kimberly Kessler Ferzan

Kimberly Kessler Ferzan

University of Pennsylvania Carey Law School

Peter K. Westen

University of Michigan Law School

Date Written: August 1, 2016


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 we 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 teach students) to think like lawyers about rape, its ambition is to set forth a framework that is useful to reformers as well.

Keywords: rape, consent, sexual assault, pedagogy, coercion, affirmative consent

Suggested Citation

Ferzan, Kimberly Kessler and Westen, Peter K., How to Think (Like a Lawyer) About Rape (August 1, 2016). Criminal Law and Philosophy (Forthcoming), Available at SSRN:

Kimberly Kessler Ferzan (Contact Author)

University of Pennsylvania Carey Law School ( email )

3501 Sansom Street
Philadelphia, PA 19104
United States

HOME PAGE: http://

Peter K. Westen

University of Michigan Law School ( email )

3178 South Hall
701 South State Street
Ann Arbor, MI 48109-3091
United States
505 577-2855 (Phone)
505 992-6885 (Fax)

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