Half and Divided Consent: Analysing Rape

Abstract

This article argues for categorization of rape cases and for the relabeling of some conduct that is currently viewed as rape. The focus is on two types of case: (1) sexual intercourse where there is ‘half consent’ to the sexual act; and (2) consensual sexual intercourse that causes or risks causing collateral consequences such as a sexually transmitted disease (STD). While rape cannot be partly justified/excused, when sexual intercourse is at least half consensual it should be labelled as second-degree rape. By contrast, consensual sexual intercourse with collateral consequences should be punished by separate offences addressing those consequences.

Keywords: consent, criminal law

JEL Classification: K10