The Burden of Consent

Author:

Treumann, Sara Elizabeth

Area of Honors:

Interdisciplinary in Philosophy, Political Science, and Women's Studies

Degree:

Bachelor of Arts

Document Type:

Thesis

Thesis Supervisors:

John Philip Christman, Thesis Supervisor
Dr. Gretchen G Casper, Honors Advisor
Vincent M Colapietro, Faculty Reader

Keywords:

rape
sexual assault
sexual consent
affirmative defense
feminist legal theory

Abstract:

How has contemporary rape legislation in both the federal and state jurisdiction evolved with the changing awareness of consent since 1960? The question of the definition of consent is important in two respects. The first is to highlight the importance of definitions in a legal sense. Because of a lack of definitional consistency in the crime of rape, different jurisdictions have criminalized different acts under different names. This causes problems within legal proceedings as will be discussed in the literature review. The second reason is because the definition of consent – the line between acceptable intercourse and a felony – is largely a social concept and thus has evolved with the anti-rape movement and second-wave feminist philosophy. Few other legal concept have gone through the same level of social evolution as rape and consent, so the purpose of this research is to understand how this social attention toward this topic has uniquely affected the penal code of a given jurisdiction. As the philosophical/social definition of consent changes through feminist activism to limit what may be considered consent, the legislative treatment of rape will reflect this same narrowing of the definition of consent. With the change in the understanding of consent, crimes such as statutory rape and date rape have moved to being considered more severe because they are seen as non-consensual acts. This will be reflected through variables such as increases in minimum/maximum years incarcerated pursuant to each jurisdiction's penalty matrix and average penalties assigned in various rape cases.