Giving Meaning to Consent at the International Criminal Court and Beyond: A (Qualified) Defence of Consent

Abstract

ABSTRACT This article examines the concept of consent in the context of rape and sexual violence within the framework of the International Criminal Court (ICC). Lack of consent is not required to be proven in relation to charges of rape in the Rome Statute, an aspect praised by feminist legal scholar Catharine MacKinnon. A significant and contested feature of MacKinnon’s theorisation of rape is her argument that such a standard should also serve as a model for domestic laws. However, it is not clear that the ICC’s current framework regarding consent and the means to address sexual violence is as robust as MacKinnon suggests. Importantly, our analysis of the international experience takes place against a backdrop where in many domestic jurisdictions consent remains firmly entrenched in law reform efforts to address the ubiquity of sexual violence. Drawing primarily on recent law reform examples from Australia, where the trend has been toward affirmative models of consent, we consider how consent is positioned within them. We argue that consent still has a place in measures in both domestic and international jurisdictions aimed at addressing the structural inequalities and power dynamics underpinning sexual violence, MacKinnon’s privileging of the measures in the international jurisdiction notwithstanding.