Definitions of rape need to be based on voluntary, genuine, and willing consent and recognize a broad range of coercive circumstances where consent cannot be voluntary, genuine, or willing and where the victim is incapable of giving consent. Concerningly, however, countries around the world, including in the Americas, have definitions of rape which are based on force or the threat of force, as opposed to lack of consent. In Equality Now’s recent study, 23 of the 43 jurisdictions surveyed in the Americas require the use of additional violence, threat, or using the victim’s physical helplessness, incapacity, or inability to resist as elements of rape.

What are the key elements of a consent-based rape definition?

A legal definition of rape and sexual assault should be centered on an individual’s voluntary, genuine, and willing consent to participate in the sexual act and the consent must be assessed in the context of the surrounding circumstances.

To that end, a broad range of coercive circumstances should be considered and special attention should be paid to any dynamics of power and authority and the exploitation of positions of vulnerability, trust, influence, and dependence. It is critical to realize that consent cannot be voluntary, genuine, or willing, and participation in a sexual act is not of an individual’s free will or agency, in contexts where coercive circumstances exist or positions of dependence or vulnerability are exploited.

Furthermore, the focus should be on the genuine efforts the alleged perpetrator made to ensure the victim gave voluntary, genuine, and willing consent. It is essential to recognize that voluntary, genuine, and willing consent may be modified or rescinded at any time during the course of the sexual interaction.

Additionally, voluntary, genuine, and willing consent must encompass all the sexual acts engaged in; for example, a woman may consent to vaginal penetration but not oral penetration or penetration, but not without a condom. The criminalization and prosecution of rape should be guided by the understanding that, while rape could affect all persons and therefore provisions on rape should cover and protect all persons without any discrimination, it predominantly affects women and girls. Therefore, it constitutes a form of gender-based violence against women that requires a gender-sensitive application of criminal law provisions. Sexual violence laws should offer protection equally in the context of marriage or intimate partnerships, incest, and at times of, and in the context of, conflict or other civil disturbance.

Examples of power and authority dynamics that could lead to the exploitation of positions of vulnerability, trust, influence, and dependence:

• Teacher and student
• Care provider and patient
• Coach and athlete
• Boss and employee
• Priest and congregant
• Family member and dependent family member (e.g. Incest)

Why must force-based definitions of rape be changed?

Definitions of rape that are based on force or the threat of force, as opposed to lack of consent, fail to meet international human rights standards and are problematic for a number of reasons. Force-based definitions often leave certain types of rape unpunished, contribute to rape myths and perceptions that it is the responsibility of victims to protect themselves from being raped, and gravely limit the extent to which crimes of rape can be successfully prosecuted. Overall, force-based definitions ignore the realities that many women and girls face in the context of rape or sexual assault and enable significant impunity for perpetrators.