The contradictions of consent in rape law1

Abstract

In this article it is argued that traditional rape law's dependence on consent as a key defining element of rape is highly problematic from a feminist viewpoint. Women's capacity to give or withhold consent as reflected in rape law rests on a liberal assumption about women's sexual agency, which is precisely what is radically undermined in rape-prone societies. Attention is thus drawn to ‘the conditions of consent’, i.e. the conditions that need to be in place in a society for women's sexual consent to be meaningful and to carry weight. Rape law's traditional reliance on consent operates on the level of freedoms of the (already constituted, intact, and resilient) subject, whereas it should rather operate on the level of the freedom to be-(come) a subject. which lies on a more basic level of existence. The article relies on Lacanian theory's insights into the inherent fluidity and fragility of the subject to explain the damage to the self brought about by rape. even whilst insisting that this inherent fragility should be clearly distinguished from the distinctively feminine ‘wound to the soul’ inflicted both by rape itself and by living in a rape-prone environment.