[Content note: sexual assault]
Like all laws, the legal definitions of crimes have changed throughout history in response to social, cultural, scientific, and political forces.Sexual assault especially is a crime that depends on social consensus for its definition. After all, while killing another person isn’t always considered “murder,” most of us at least agree on what it means to kill a person. Not so with sexual assault.
Feminist activists have been fighting for decades to expand and improve that definition, from including marital rape to deemphasizing vaginal penetration as a criterion. (Yes, people without vaginas can be raped.) They have also urged state legislatures to rewrite laws so that rape does not have to be “forceful” to count. After all, what matters isn’t whether or not force was used, but whether or not consent was given.
Yale law professor Jed Rubenfeld, however, wants definitions of rape to re-emphasize force. The reason, he claims, is that using consent (or lack thereof) as the basis upon which rape is defined leaves room for all sorts of ethical quandaries.
For instance, if someone falsifies their identity in some way to convince someone to have sex with them, then that person did not technically give informed consent, and could consider the act rape even though they appeared to fully consent to it. If we criminalize non-consensual sex, how could we not also criminalize sex under false pretenses?
Rubenfeld does include the caveat that the definition of force should be broadened. He says, “I’m in favor of an expanded force requirement, an understanding that sees force in threats, in drugging, in physical restraint (holding the victim down, locking the victim up), and so on.”
But even then, many (if not most) sexual assaults do not involve any of these things. Nor should they have to in order to be considered sexual assault.
Read the rest here.
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