Conceptualizing the role of consent in the definition of rape at the international criminal court: a norm transfer perspective

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.

Risky dis/entanglements: Torture and sexual violence in conflict

“…Debates around sexual violence in peacetime often place consent, in particular, the lack of it, at the heart of their definitions, as a line between what is legal, moral or accepted, and what is not. In popular discourse and legal judgments, consent is the hinge around which a particular act is understood as ‘sex’ or, alternatively, as ‘violence’ (Dowds, 2018: 6). Consent thus figures as a kind of ‘dividing line’ used to distinguish ‘good’ from ‘bad’ (Wertheimer, 2003), ‘pleasurable’ from ‘unpleasurable’ (Jones, 2002), and morally acceptable from morally unacceptable and/or criminal sex, that is, rape (Hurd, 1996).…”

“…While these debates dominate conversations about sexual violence in national contexts and domestic legislation, they appear less prevalently in discussions about wartime rape (cf. Dowds, 2018). Notably, while the role and the significance of consent has shifted across the definitions developed by and judgments passed at the ICTY, the ICTR and the ICC (Dowds, 2018; Hayes, 2010: 140–142), contemporary international rape law both requires and presumes lack of consent (Hayes, 2010: 143–144).…”

“…Dowds, 2018). Notably, while the role and the significance of consent has shifted across the definitions developed by and judgments passed at the ICTY, the ICTR and the ICC (Dowds, 2018; Hayes, 2010: 140–142), contemporary international rape law both requires and presumes lack of consent (Hayes, 2010: 143–144). The contexts of war, genocide and/or detention have been interpreted as coercive environments to the extent that consensual sexual relations are rendered impossible (Dowds, 2018: 6–7; Green et al, 1994; Halley, 2008: 8).…”

“…Notably, while the role and the significance of consent has shifted across the definitions developed by and judgments passed at the ICTY, the ICTR and the ICC (Dowds, 2018; Hayes, 2010: 140–142), contemporary international rape law both requires and presumes lack of consent (Hayes, 2010: 143–144). The contexts of war, genocide and/or detention have been interpreted as coercive environments to the extent that consensual sexual relations are rendered impossible (Dowds, 2018: 6–7; Green et al, 1994; Halley, 2008: 8). Similarly, non-consent is largely assumed in the literature in relation to ‘sexual exploitation’ perpetrated by UN peacekeepers against local women, even in cases where the ‘victims’ of such abuse claim to have consented to sexual relationships (cf.…”