Consent-Based Rape Legislation in Practice

Consent-Based Rape Legislation in Practice: Challenging Judicial Core Values

Visiting Group

November 2023

This project, which will result in a publication, offers unique insights into legal professional reasoning on the implementation of a consent-based
rape law and how it challenges taken-for-granted legal practice. Developing the argument that modern legal institutions build on dated understandings of rationality, objectivity, and individual autonomy, the convenors demonstrate that when legal actors proceed with rape cases as if they were ordinary criminal cases, transparency, predictability, and equality before the law, decreases, ultimately rendering the rape law ineffective and reducing its democratic legitimacy.

Framing the analysis with a combined feminist legal and sociology of emotions perspective the authors argue that legal rationality is emotive-cognitive and legal objectivity is a situated process requiring skilled emotion work and empathic imagination. Individuals, although they can be held responsible for their actions, are embedded in social and relational contexts, which is particularly crucial to ponder in cases involving sexual interactions. For consent-based rape laws to be effective, predictable, and equal, legal professionals therefore need training in critically reflecting on their own positionality, values, and experiences; in emotional reflexivity and the working of empathy; in how situated and structural power dynamics influence people’s action and behaviour.