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Volume 109, Issue 2


Rape as Indignity

Ben A. McJunkin

Associate Professor of Law, Sandra Day O’Connor College of Law at Arizona State University; Associate Deputy Director, Academy for Justice. 

22 Feb 2024

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 nonconsensual 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 nonconsent 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. Moreover, the very structure of consent arguably reinforces problematic gender roles in sexual relations. Increasingly, the concept of consent is being questioned by scholars, who desire a rape law that more accurately refects the lived experience of both victims and perpetrators.

This Article proposes a new grounding for U.S. 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.

To read this Article, please click here: Rape as Indignity.