Proving non-consent

Written by SAHR member, Natasha Latiff.

There is no commonly accepted definition of the term rape and sexual assault in international law.

Take Art 7(1)(g) of the Rome Statute for example:

1. The perpetrator invaded the body of a person by conduct resulting in penetration, however slight, of any part of the body of the victim or of the perpetrator with a sexual organ, or of the anal or genital opening of the victim with any object or any other part of the body;

2. The invasion was committed by force, or by threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power, against such person or another person, or by taking advantage of a coercive environment, or the invasion was committed against a person incapable of giving genuine consent.

Proof of non-consent is still an element in most national laws, or if not, features prominently during cross-examination in trials.

Force v. coercive circumstances

Historically rape has been defined in many national jurisdictions as non-consensual sexual intercourse, i.e. penetration by the penis into the vagina or anus. However not all assaults that are similarly humiliating, degrading and inhumane in nature necessarily involve forced penetration of the penis into the vagina or anus. Various other forms of rape can also occur through the use of objects and/or bodily orifices. A poorly drafted law that defines rape by a mechanical description of body parts may fail to capture that it is the aggression behind the act that is being criminalized. But what is aggression and how is it manifested in reality?

The force/resistance binary, obscure the reality of how rape occurs both in peacetime and conflict. Coercion is not solely expressed by physical force. In peacetime, one can describe coercion in terms of economic necessity, threat to physical safety and abuse of power. During armed conflict or military occupation, coercion exists by default due to the surrounding contexts. As such it can be implied from the presence of force and the collective power held by a group of people over others. In this context, the perpetrator in exercising his power had destroyed ‘the conditions under which a woman may exercise her right to assert her sexual integrity.’[8] Beyond that, we are also prompted to consider coercion in terms of the ‘coercive inequality of the sexes’.[9]

Coercion as the coercive inequality of the sexes

Advocates are urged to explore the multiple layers of coercion starting from problematising the notion of consent between two seemingly autonomous individuals. Consent presumes that the self is autonomous and independent.[10] But the extent of a woman’s independence and autonomy is also dependable on her relational being with others. How is her consent impelled by considerations of her performance as a mother, an honourable wife, a breadwinner of the family, her family’s status in the community, or fear of being ostracized? If these relational aspects are given to her as opposed to consciously chosen and if due to entrenched power structures, it is difficult if not impossible to exercise meaningful autonomy, then can advocates articulate a theory of autonomy and consent that is rooted in this lived reality? Autonomy and consent as it is defined under numerous current rape and sexual assault laws relies on a kind of flexibility that comes with the masculine norm. It relies on the presumption that autonomy is asexual. A woman’s autonomy to consent is assessed not based on her life considerations but on those of a standard male. So if autonomy is really ‘vulnerability’; i.e. vulnerability to one’s obligations and responsibilities and vulnerability in the sense of a woman’s natural physical inferiority to an advancing sexually aggressive male — then advocates are urged to articulate an idea of autonomy as ‘vulnerability’[11] and consent as ‘coerced bargain’

[8] Debra Bergoffen, ‘February 22, 2001: Toward a Politics of the Vulnerable Body’ (2003) 18 Hypatia, 116, 122

[9] Catherine Mackinnon, Are Women Human? And Other International Dialogues, (Harvard University Press , 9 Nov 2007) 244

[10] Bergoffen (n 8) 126

[11] Ibid, 127