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Abstract: Part I of this Essay makes the case that consent or nonconsent should be understood as informing the harm of rape, rather than as the primary source of wrongdoing in rape. It does so by distinguishing between harm and wrongdoing in cases of so-called “secretive” consent, highlighting how a legal commitment to subjective consent masks other forms of wrongdoing that play a causal role in sexual relations. Part II of this Essay draws attention to two largely underexamined attacks on the very concept of sexual autonomy or (women’s) sexual choice. These attacks mirror rape law’s focus on consent, providing some hope that a change in the structure of rape law can disrupt the social discourses that enable such attacks. Part III concludes by reimagining rape as a result crime and examines the recent revisions to the Model Penal Code’s sexual assault provisions as an example of precisely how this can be done. Although I have elsewhere advocated for a rape law that is broader than the new Model Penal Code, these provisions, in many cases, at least reflect a promising structure for turning our attention from harm to wrongdoing.
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