Lack of Consent to Sexual Intercourse and the Fault of the Rape Survivor under U.S. Criminal Law

Abstract

The greatest attention to the lack of consent to sexual intercourse as a mandatory feature of rape is paid under the US criminal law. This issue is closely related to the main changes in US state legislation that have occurred as a result of a departure from the traditional understanding of rape as a crime. There are three approaches to understanding the term «consent» in doctrine and legislation, namely, «no means no», «yes means yes» and a negotiation model. Each model imposes features on the process of establishing the fault of the subject and the rapist’s possible error in consent. Difficulties arise when the subject and the victim are intoxicated. Based on the experience of the United States, recommendations are formulated that are useful for the Russian legislator and law enforcement officer. It is not necessary to consolidate any model of consent to sexual intercourse in the criminal law, as well as to abandon signs of the use of violence, the threat of its use or the use of the helpless state of the victim. It is required to distinguish harassment and overcoming the will of the victim, to assess the silence of the victim, victim’s words and actions, finding out whether the victim’s will was distorted. A woman has the right to withdraw her consent after sexual intercourse starts, in which case, if there are other signs of a crime, the continuation of sexual intercourse against the will of the victim is qualified as rape.