Rereading Rape in the Critical Canon

This essay identifies what the author terms “adjudicative reading,” a tendency in literary criticism to read novels depicting sexual violence as if in a court of law. Adjudicative reading tracks characters’ motivations and the physical outcomes of their actions as if novels can offer evidence, or lack thereof, of criminal conduct. This legalistic style of criticism not only ignores the fictionality of incidences of rape in novels, but it replicates the prejudices inherent in historical rape law by centering the experiences of the accused character over and against the harm caused to the fictional victim of rape. By contrast, the “capacious” conception of rape proposed here refuses to locate rape in a particular bodily act (as the law does), rejects the yoking of rape’s harms to a particular gender, and understands various forms of violence as equally serious (rather than creating a hierarchy of sexual assault, as current legal conceptions tend to do).

Balancing Sexual Autonomy, Responsibility, and the Right to Privacy: Principles for Criminalizing Sex by Deception

Due to the reconceptualization of rape and other sexual offenses as violations of one's sexual autonomy, consent has replaced the element of force as the focal point of rape law. This shift to a “consent model” of rape has prompted much discussion about the scope of sexual autonomy and the problem of “rape by deception” in legal scholarship. Most theorists of consent argue that certain forms of deception invalidate any token of consent in the same way as forcible sexual contact. However, there is also a widely shared concern that criminalizing sex-by-deception poses serious problems in terms of drawing the line between deceptions that violate sexual autonomy and deceptions that do not. This Article offers an account of principles that should be considered when examining legal cases related to sex-by-deception. These principles are examined and articulated in a way that strikes a balance between responsibility, autonomy, and rights such as the right to privacy.

Sex Must Be Voluntary: Sexual Communication and the New Definition of Rape in Sweden

Many countries are in the process of replacing outdated sex offense regulations with laws that accurately correspond to late modern ideas about gender equality, sexual self-determination, and consensual sex. One example is Sweden, where a law that defines rape based on a criterion of nonvoluntary participation entered into force in 2018. This article analyzes the representation of rape in the new law and legal discourse in Sweden, and shows that rape is represented as a matter of choice and communication in sexual situations. Further, the new rape law is coupled to an emerging problem within such disparate spheres as public health, social media campaigns, sexual education, and gender studies; namely, the problem of sexual communication and gray zones in sexual encounters. To understand this new representation of rape, further exploration is suggested both into the effects of sexual violence being framed as a matter of individual choice, consent, and communication in late modernity and into the role of criminal law in the era of thin normativity. The article concludes that the new rape law sends a clear message about what sex should be—namely, something voluntary—but does not accurately describe the crime and the conduct that deserves criminal censure.

Consent, Rape, and the Criminal Law

This article explores the impact of rape law reform, both within and beyond the criminal law. The story of U.S. criminal rape law reform tends to be told as one of remarkable feminist success followed by widespread stagnation. Despite comprehensive changes in the law, reporting rates, prosecution rates, and conviction rates for rape increased only slightly. This article resists that binary account of success and failure by offering a more nuanced assessment. It argues that, by changing rape’s definition to an inquiry focused on whether the victim consented, the law has facilitated a shift in cultural and institutional norms governing unwanted sex. It is naïve to think that a change in law would, on its own, end rape culture, but there is ample evidence to support the conclusion that rape law reform has played a central role in reducing society’s tolerance of the rape prerogatives that have held sway for millennia.

The Impossible Trinity of Deception, Sex and Consent

During the last couple of centuries, the English law dealing with sexual conduct has made a decisive shift towards a ‘consent-based model’ of rape law. But strikingly, deceptive sexual relationships (DSR) have been untouched by this development as lately reaffirmed by the Court of Appeal in R v Jason Lawrence. If rape is defined as sex without consent, then DSR ought to be no exception, because the general proposition of law is that consent induced by deception is no consent at all. In making a case for the criminalisation of DSR, this article (1) arrays the lack of uniformity in court’s jurisprudence on DSR and (2) brings along the sexual autonomy theory to support its case.

The Characters of Criminal Law

Criminal law theorists necessarily start their theorizing with some idea of their subject. The dominant figure in the canon is the criminal actor understood as a freestanding individual, removed from his group affiliations. I call him Model 1. Then there is the demographic or social model of the criminal person. Here our disciplinary characters are treated as members of a population that have certain propensities. Those who subscribe to this second model tend to be thinking of real historical and social people, located in places and contexts, as well as people with bodies and sexes. I call this Model 2. Most criminal laws operate on the basis of a Model 1 person, with an individual without social characteristics or context. But occasionally these demographic concerns are directly expressed in criminal laws. The English criminal law of rape is one such law. It still names men as the people of concern. The English law of rape therefore poses a challenge for Model 1 individualists, requiring them to make some sense of this population-specific law. So, when individualists write about the nature of rape and its law, as they often do, it is highly revealing of their thinking about their own criminal law character. Here I consider the work of legal philosopher John Gardner, who has written influentially about English rape law, to discover what an individualist does with a law which acknowledges its population of concern. What happens when the two paradigms conflict?

Anatomy of a rape: Sexual violence and secondary victimization scripts in U.S. film and television, 1959–2019

The rape law reform movement in the U.S. has made significant progress since the 1970s. All fifty U.S. states and the District of Columbia have now made changes to their rape statutes. Nonetheless, the incidence of reported rape has increased substantially since the 1970s, and rape conviction rates have remained frustratingly low. Such statistical evidence suggests that amending legal statutes has not proven sufficient to curb endemic sexual violence in the U.S. Effective prevention requires a deeper understanding of rape culture, the conglomeration of discourses, ideologies, and practices that normalize sexual assault. Of particular interest here are mass mediated representations of rape, and their power to authorize or critique sexual violence, its root causes, and its consequences. This paper interrogates and seeks to disrupt rape culture by critically analyzing three media texts with narratives based on real-world cases of sexual violence and secondary victimization, the films Anatomy of a Murder, 1959 and The Accused, 1988 and the Netflix miniseries Unbelievable, 2019. With roughly thirty years between these texts, they provide snapshots of shifting attitudes and practices around sexual violence and secondary victimization in the U.S., from the pre-reform era to the #MeToo era. The analysis reveals some heartening changes but also some disturbing continuities in the real-world ideas and practices that media texts reflect and amplify.

A Comparison of American Rape Law to English and Welsh Rape Law

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The rape law revision in Denmark: Consent or voluntariness as the key criterion?

The adoption of a consent-based rape provision in the Danish Penal Code has gradually gained sufficient political support. The overall objective behind the law reform is to render better protection of the right to sexual self-determination and sexual integrity. However, in the recent run-up towards a political agreement, a sharp dividing line has separated the proponents of change due to a heated controversy with regard to the choice of the term to be used in the revised criminal law provision, i.e., ‘consent’ or ‘voluntariness’. The disagreement has caused a protracted deadlock in the reform process. This article examines the polarising opinions in the debate and compares the potential impacts of the debated models. It will be demonstrated that the demarcation line between the two opposing parties in the debate concerning the choice of the appropriate terminology has been drawn unnecessarily sharp. The reach of the amended rape legislation will not merely depend on the wording of the rape provision but will, at least in part, depend on the clarifications provided in the preparatory works. Ultimately, the courts will have to clarify the legal implications of an individual’s passivity in a sexual encounter and address the adequate assessment of sexual encounters taking place against the backdrop of psychological violence and abuse.

Feasts of Filth

Sarah Kane’s Blasted is one of the most controversial plays written and produced by a British playwright over the last quarter century. A defining contribution to a genre of plays which emerged during the 1990s, and which are variously termed ‘in-yer-face’ and ‘new brutalist’. The principle strategy of ‘in-yer-face’ theatre was to shock its audience. Intimating a shared complacency between comfortable middle-class Britain and its comfortable middle-class theatre. A number of ‘in-yer-face’ plays were distinguished by their graphic presentation of extreme violence, commonly sexual. And nowhere was this presentation more explicit than in Kane’s Blasted, with successive scenes of rape and sexual abuse. This chapter re-reads Kane’s play in the closer context of familiar, and ongoing, debates regarding the relation of law and gender, and more particularly still the limitations of modern rape ‘law’. It is argued that these limitations are rooted in a series of particular rape ‘myths’. Many of which can be located in Kane’s writing, but which are also challenged by it.