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Non-Consent: Reforming the Law of Rape

Rape is a serious crime that entails a lengthy prison sentence for the offender and causes severe psychological trauma for the victim. Rape can destroy years of life and should involve an appropriate punishment from the legal system. However, about half of the states in the US consider non-consent to be insufficient to admit rape. These jurisdictions require the victim to use force to defend oneself and subsequently present evidence of the use of force in court.

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This situation is unhealthy and unacceptable and signals the necessity for immediate legislative reform. The need for the victim to defend herself and provide evidence in a court of attempts to protect herself is based on misogynistic attitudes towards women, who are much more likely than men to be rape victims. Perhaps such a requirement is necessary to protect the offender, who needs more compelling reasons than verbal disagreement to realize that sexual intercourse is undesirable. This requirement leads to a large layer of hidden crimes when the victim does not find the strength to press charges. There are many reasons for this reluctance, including a lack of faith in the justice system and the need to go through the humiliating process of presenting evidence of physical confrontation that the victim should not provide from the perspective of common morality.

Scientists defend the victim’s position and explain why the existing system of legal requirements is still supported by society. Schulhofer (2017) notes that three categories of people directly or indirectly impede legislative reform. These are “misogynists, the low-information opponents, and the well-informed, very thoughtful opponents” (Schulhofer, 2017, p. 348). The first group is people who do not believe that the protection of dignity should extend to women. The second group consists of people who have only a superficial understanding of the problem, receiving information mainly from the media. Finally, the third group of citizens is overly aware of the nuances of the justice system and fears the excessive penalties for offenders. Therefore, for the reform to occur, human rights defenders must work in the indicated three directions and convince the majority to gain support in the states, where no still does not mean no.


Schulhofer, S. J. (2017). Reforming the law of rape. Minnesota Journal of Law & Inequality, 35, 335-352.

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