No abstract

Over the past three decades' international criminal legal standards on sexual and gender-based violence (SGBV) have developed rapidly, sparking debate within feminist circles over the extent to which these developments might bear relevance to domestic contexts in a process termed "norm transfer." Indeed, non-governmental organisations and feminist scholars have called for domestic adoption of the International Criminal Court (ICC) definition of rape due to its omission of the element of the absence of consent. However, the place of consent in an international criminal definition of rape is a hotly contested topic, with disagreement as to whether rape in conflict should be considered "exceptional" or a continuation of everyday violence against women. This article provides a new lens from which to explore these questions by situating the feminist strategy of norm transfer within the complementarity-based system of the ICC. It uncovers a number of gaps within the ICC definition that raise questions not only about the status of the definition as a candidate for norm transfer but also about the robustness of the definition in and of itself. It concludes by considering the role of consent as an implicit element within the ICC definition and its operation as a defence.

This paper considers 'consent-based' and 'coercion-based' models of defining rape. It argues that the ability of these models to adequately protect against violations of sexual autonomy is dependent on their engagement with the broader circumstances within which sexual choices are made. Following an analysis of both models it is argued that attempts to contextualise consent and coercion are often undermined by evaluative framings that encourage scrutiny of the complainant's actions at the expense of engagement with the broader circumstances. This is particularly problematic where rape occurs as a result of non-violent coercion and the victim does not verbally or physically demonstrate their lack of consent. The paper draws on United States military law and argues that the doctrine of constructive force, which has been used to deal with non-violent coercion in these contexts, has the potential to progressively reshape our contextual and evaluative framings in domestic contexts.

This article examines some of the complexities and tensions which lie at the intersection of popular and official constructions of technology-assisted sexual violence (TA-SV). It argues that many of the core contextual understandings of victimhood and harm which underpin the cultural and legal framing of offline forms of sexual violence are not only reproduced but augmented in virtual settings. Drawing on debates from critical victimology, the article argues that TA-SV amplifies traditional understandings of ‘victim’ and ‘offender’ behaviours concerning sexual crime. In so doing, it highlights the particular challenges around: a) the ‘ideal victim’; (b) responsibilisation and blame; and c) victim-offender-bystander continuums which emerge not only within discourses on TA-SV, but also through the use of digital evidence at trial. The article concludes by examining the broader implications for academic discourses on victimhood and the challenges for legal and cultural discourses in responding to sexual violence in the digital age.