Towards a Contextual Definition of Rape: Consent, Coercion and Constructive Force

Abstract

This paper considers 'consent-based' and 'coercion-based' models of defining rape. It argues that the ability of these models to adequately protect against violations of sexual autonomy is dependent on their engagement with the broader circumstances within which sexual choices are made. Following an analysis of both models it is argued that attempts to contextualise consent and coercion are often undermined by evaluative framings that encourage scrutiny of the complainant's actions at the expense of engagement with the broader circumstances. This is particularly problematic where rape occurs as a result of non-violent coercion and the victim does not verbally or physically demonstrate their lack of consent. The paper draws on United States military law and argues that the doctrine of constructive force, which has been used to deal with non-violent coercion in these contexts, has the potential to progressively reshape our contextual and evaluative framings in domestic contexts.

Defining and Measuring Sexual Consent within the Context of University Students’ Unwanted and Nonconsensual Sexual Experiences: A Systematic Literature Review

“…Of the definitions that were implied, or referred to, within measures, four themes emerged: incapacitation; use of force; use of threats; and lack of wantedness. The first three themes are commonly present in the legal definition of sexual consent (Breiding et al, 2016; Dowds, 2020) and indicate that the individual’s agreement (or, consent) was obtained under duress. Lack of wantedness, however, presents an interesting dilemma: does one have to want sexual contact to consent to it?…”

The Impacts of Conservatism, Social Dominance, and Rape Myth Acceptance on Blame Attribution in Ambiguous Rape Scenarios

“…The fact that the scenario was judged to be a rape in all four conditions suggests that people understand non-behavioral cues that convey consent. Within the UK, consent is included as a violation of personal autonomy in law; however, within court processes, rape myths still reinforce the narrative of force and resistance, with barristers often focusing on how the victim had withdrawn consent rather than how perpetrators gained enthusiastic consent (Dowds, 2019). In conditions where Katie had consumed alcohol, the likelihood of the scenario being judged as rape was lower than when Katie had consumed a soft drink.…”

Drug-Facilitated Sexual Assault: A Systematic Review

“…This observation becomes crucial when facing sexual violence myths, or “rape myths” (Bohner et al, 2009), those beliefs about rape, victims, and perpetrators that deny or minimize sexual violence. According to one of the most common sexual violence myths, the perpetrator is someone unknown to the victim and probably mentally ill or sociopathic (Adolfsson et al, 2017; Dowds, 2019; Isorna & Rial, 2015; Khan et al, 2020), “someone who is out of his mind and because of that he can do that terrible act” (Márquez & Jaenes, 2021, p. 50).…”