Reframing Rape - from Consent to Responsibility

This article proposes a rethinking of rape, with a model that can be applied to other sexual offences. It starts from the proposition that a sexual penetration is a prima facie legal wrong, which requires justification. This imposes an obligation on the person penetrating another to have sufficiently good reasons to justify the penetration. The justificatory reasons are only provided by a reasonable belief in consent, richly understood. Rape should, therefore, be redefined as a sexual penetration without a reasonable belief in the other’s consent. This means the focus in rape trials should not be on whether the victim consented, but rather on whether the defendant had good reasons to believe there was sufficiently rich consent.