The Shattered Philosophy of Rape Offense: A Normative Analytic Quest after What Rape is and is Not
58 Pages Posted: 19 Jul 2019 Last revised: 29 Jul 2021
Date Written: July 18, 2019
Abstract
Although the legal discourse on the offense of rape is vast, perhaps more so than regarding any other offense, rape is still an elusive normative concept. The doctrine of rape has evolved and expanded significantly throughout the years, to include diverse physical interactions and different social settings.
The academic discourse on the rape offense typically focuses on one form of rape, or even on a small element of one form. This essay provides a significantly broader observation that could deepen the normative understanding of rape. Can we, by observing the diverse doctrines of rape, coercive sex, incompetent sex, uninformed sex and unconscious sex, extract a clear and coherent normative message? Philosophically speaking, what is rape and why? This tackles these very difficult questions, by examining these forms of rape in an analytic normative way, an innovative intricate academic task. In order to better understand the normative foundations of rape and extract the precise normative message from the law, this task requires a thorough analysis of notions of rape and their doctrinal boundaries, and an examination of what counts, and what does not count as rape, and most importantly: why. To do that, this essay presents an innovative dichotomy, analytically dividing the perpetrator-victim interaction into major facets: the physics of rape, the settings of rape, and the accurate legal labeling of rape. While unfolding what constitutes "rape" and what is excluded from rape, this unprecedented analytic observation reveals significant normative dissonances and cracks in the modern conceptions of rape.
After the thorough analytic journey, having identified major normative dissonances in current rape doctrines, the conclusion is the rape offense is normatively shattered. This article proposes to abolish the rape designation and start anew, categorically dividing sexual offenses into sexual coercion and sexual abuse, and offering subcategories and key parameters regarding the measuring of severity.
Keywords: Rape, Normative, Rape by Fraud, Statutory Rape, Criminal Law, Coercion, Fraud, Competency, Consent, Sexual Autonomy, Criminal Label, Penetration, Sexual Abuse
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