Consent, Rape and the Criminal Law

Abstract

The story of US criminal rape law reform tends to be told as one of remarkable feminist success (between 1970–1990, feminist-led coalitions changed state laws so that rape ceased to be a crime requiring force and resistance and became instead a crime that only required sex without consent) followed by widespread stagnation. Despite comprehensive changes in the law, reporting rates, prosecution rates and conviction rates for rape increased only slightly. This essay resists that binary account of success and failure by offering a more nuanced assessment. First, it explores the full range of factors hindering the reporting, prosecution and conviction of rape crimes, including the role played by social norms. Second it argues that, by changing rape’s definition to an inquiry focused upon whether the victim consented, the law has facilitated a shift in cultural and institutional norms governing unwanted sex. In short, the law’s message that unwanted sex is wrong matters. It is naïve to think that a change in law would, on its own, end rape culture. But there is ample evidence to support the conclusion that rape law reform has played a central role in reducing society’s tolerance of the rape prerogatives that have held sway for millennia.

Keywords: rape, sexual assault, consent, feminism. sexual harassment, criminal law