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Abstract: Rape law has a consent problem. The topic of sexual consent predominates any discussion of rape law, both doctrinally and socially. It is now widely taken as axiomatic that non-consensual sex is paradigmatic of rape. But consent is in fact a deeply contested concept, as recent debates over affirmative consent have demonstrated. Grounding rape law in sexual non-consent has also proven both over- and under-inclusive, too often leaving the law inadequate to vindicate some sexual harms and distorted in attempts to reach others. Increasingly, the very concept of consent is being questioned by scholars, who desire a rape law that more accurately reflects the lived experience of both victims and perpetrators. Consent is even potentially dangerous. The structure of consent reinforces problematic gender roles in sexual relations and fuels troubling narratives that have led to widespread violence against women.
This Article proposes a novel grounding for rape law—not as a matter of consent, but as a matter of human dignity. Human dignity has been perhaps the premier value in both political and moral thought over the past two centuries. As the Article documents, dignity’s relatively straightforward moral imperative — respect for persons — has a long tradition of being operationalized legally, making it ripe for use as the basis of a criminal prohibition. Building upon both federal and state efforts to combat the indignities of sex trafficking, the Article outlines a proposed framework for punishing as rape the infliction of indignity through certain means of compelling sex, namely force, fraud, and coercion. Centering human dignity, rather than consent, would more closely align rape law with the fundamental tenets of criminal law theory and has the potential to disrupt gendered social scripts that increasingly animate violence. In a time of mass incarceration, recognizing rape as indignity would also set the stage for a much-needed shift toward restorative justice and incarceration alternatives.
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