Consent or Coercion: The Development of an International Definition of Rape

Abstract

A definition of rape is yet to be universally adopted in international law. This paper explores the emerging definition of rape in international criminal law and, in particular, the competing paradigms of coercion and consent. The issue of consent has formed the basis of intense debate surrounding the adoption of a universal definition. Most commentators argue that consent is not a relevant consideration for the determination of the crime of rape in an international context. This paper argues that a definition which is devoid of an assessment does not adequately balance the competing interests of the rights and protection of victims against the fundamental right of the accused to a fair trial. This paper canvases the clear jurisprudential trend away from a definition which incorporates a paradigm that solely focuses on coercion towards the incorporation of a paradigm founded on sexual autonomy, thus requiring an assessment of consent. In conducting this analysis of the emerging definition, however, this paper has discovered that it is overly simplistic to require either an approach focussed on consent or coercion, but rather, what has been observed is the emergence of a definition which is unique to the international context; one that intricately requires an assessment of both circumstances of coercion, and consent. This definition, it is submitted, develops a new paradigm; one which is focused upon principles of human dignity, autonomy, consent, and also the rights of the accused and overall upholding justice.