Towards a Contextual Definition of Rape: Consent, Coercion and Constructive Force
| Published date | 01 January 2020 |
| Date | 01 January 2020 |
| Author | Eithne Dowds |
| DOI | http://doi.org/10.1111/1468-2230.12461 |
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Modern Law Review
DOI: 10.1111/1468-2230.12461
Towards a Contextual Definition of Rape: Consent,
Coercion and Constructive Force
Eithne Dowds∗
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.
INTRODUCTION
The concept of sexual autonomy has played a key role in enhancing our
understanding of the wrong of rape.1Encompassed within this concept is the
idea that individuals have the right to make autonomous decisions about their
sex lives. Conceptualising rape as a violation of sexual autonomy has been
central to establishing consent, as opposed to force and resistance, as core to
definitional constructions of the offence. This position has been endorsed by
the European Court of Human Rights.2The Committee on the Elimination
of Discrimination against Women has even proposed two models of rape law,
one a positive or active model of rape law which centres around the existence
or non-existence of ‘unequivocal and voluntary agreement’ and the other
framed in more negative terms requiring that the act take place in ‘coercive
∗Lecturer in Law, Queen’s University Belfast. I am indebted to Professor Anne-Marie McAlinden,
Dr Susan Leahy and the anonymous refereesfor their helpful comments on earlier drafts of this article.
I am also grateful to Dr David Prendergast for organising a roundtable on consent in criminal law in
Trinity College Dublin where I presented an earlier version of this paper to par ticipants, including
Dr Tanya Palmer, who provided me with invaluable feedback, and to Dr Natasa Mavronicola and
Professor Jean Allain. All errors remain entirely my own.
1 See, for example, S.J. Schulhofer, ‘Taking Sexual Autonomy Seriously: Rape Law and Beyond’
(1992) 11 Law and Philosophy 35 and V. Munro, ‘Constructing Consent: Legislating Freedom
and Legitimising Constraint in the Expression of Sexual Autonomy’ (2008) 41 Akron Law Review
923.
2M.C. vBulgaria (Application no 39272/98) 4 December 2003.
C2019 The Author. The Modern Law Review C2019 The Modern Law Review Limited. (2020) 83(1) MLR 35–63
Consent, Coercion and Constructive Force
circumstances’.3These two models are commonly referred to as ‘consent-
based’ or ‘coercion-based’ models of rape and variations of them exist in several
domestic jurisdictions.4Although framed differently, both of these models are
said to retain consent at the centre. However, research on the application
of rape law has shown a tendency for narratives of force and resistance to re-
emerge in court processes, with judges, barristers and jur ies casting suspicion on
complainants who do not physically or verbally resist.5Consequently, scholars
such as Kelly and Munro have emphasised the importance of engag ing critically
with the circumstances under which choices are made to take account of the
‘continuum of coercion’ within which the crime of rape may occur.6
While acknowledgment of the need for a more contextual approach to rape
is welcomed, there has, to date, not been a comparison of the precise analytical
tools that may be deployed under each of the models of rape law. This paper
addresses this gap by examining the definitions of rape in England and Wales
and Canada as examples of the consent-based approach, and Michigan and
Italy as examples of the coercion-based approach.7These jurisdictions have
been chosen due to the variation in their approaches in relation to how the
elements of consent and coercion are treated for the purpose of the mens rea
and actus rea of the offence.8Although some commentators have emphasised a
3Ver t i d o vThe Philippines (Communication No 18/2008) Committee on the Elimination of Dis-
crimination against Women July2010 (Vert i d o ); Council of Europe, Council of Europe Convention
on Preventing and Combating Violence Against Women and Domestic Violence 11 May 2011, para 8.9
(b)(ii).
4 Short-hand language for these models adopted from K. Grewal, ‘The Protection of Sexual
Autonomy under International Criminal Law: The International Criminal Cour t and the Chal-
lenge of Defining Rape’ (2012) 10 Journal of International Criminal Justice 373. For an overview
of models in the European context see European Institute for Gender Equality, Analysis of the
National Definitions of Rape (EIGE, October 2016) and Amnesty International, Right to be free from
Rape: Overview of Legislation and State of Play in Europe and International Human Rights Standards
Internal Index No: EUR 01/7757/2018 (Amnesty International, 19 January 2018).
5 See, for example, R. Burgin, ‘Persistent Narrativesof Force and Resistance: Affir mativeConsent
as Law Reform’ (2018) The British Journal of Criminology 1; L. Ellison and V. Munro, ‘Better the
devil you know? ‘Real rape’ stereotypes and the relevance of a previous relationship in (mock)
juror deliberations’ (2013) 17 International Journal of Evidence & Proof 299.
6 L. Kelly, ‘The Continuum of Sexual Violence’ in J. Hanmer and M. Maynard (eds), Wom e n,
Violence and Social Control (Basingstoke: Palgrave Macmillan, 1987) 46; V. Munro, ‘An Unholy
Trinity? Non-Consent, Coercion and Exploitation in Contemporary Legal Responses to Sexual
Violence in England and Wales’ (2010) 63 Current Legal Problems 45, 46.
7 This methodology is similar to what Adams called a ‘representative comparison’ which involves
selecting at least two representatives from identified groups, see A. Adams, ‘The First Rape
Prosecution before the ICC: Are the Elements of Crimes Based on a Source of International
Law? (2015) 15 International Criminal Law Review 1098, 1102. While it is acknowledged that
there is variation beyond these definitions the selected jurisdictions allow for a consideration of
the interplay between consent and coercion.
8 For some background see, United Kingdom Home Office, Setting the Boundaries: Reforming the
law on sex offences 1 July 2000; L. Vander vort, ‘Affirmative Sexual Consent in Canadian Law,
Jurisprudence, and Legal Theory’ (2012) 23 Columbia Journal of Gender and Law 395; J. Temkin,
Rape and The Legal Process, (Oxford: OUP, 2002) on the ‘famed’ Michigan model; R.A. Fenton,
‘Rape in Italian Law: Towards the Recognition of Sexual Autonomy’ in C. McGlynn, and V.
Munro (eds), Rethinking Rape Law: International and Comparative Perspectives (London: Routledge,
2010).
36 C2019 The Author. The Modern Law Review C2019 The Modern Law Review Limited.
(2020) 83(1) MLR 35–63
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