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

Abstract

AbstractThis 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.