Consent and the Definition of Rape in International Criminal Law

Abstract

Until the first decisions of the International Criminal Tribunals of the Former Yugoslavia and of Rwanda in the 1990s, the crime of rape was not expressly recognised as a standalone offence at international law. With its recognition, however, have come many complications in determining its constituent elements, particularly in regard to the element of consent. This paper addresses the role of consent in the definition of rape at international law. It argues that while academic commentary and several judicial decisions tend to favour the adoption of a coercion-based approach to the definition of rape, the correct approach to defining rape in the international law sphere is to expressly incorporate absence of consent as an element of the crime, and that this approach ought to be adopted by the International Criminal Court.