PERSONAL autonomy is among the most precious of human values. 

John Locke described it as a natural law that recognises the basic human right to self-determination. We shouldn’t even call it a right, because some things are so important we ought not codify them, lest they become subject to exceptions and legislative whims that can’t be reversed. Like the old camel’s nose in the tent problem — once the nose is in, the tent will surely fall.

We express our commitment to the profound nature of autonomy when we forbid things like slavery and torture, and when we say things like “my right to swing my fist ends before it hits you in the nose.”

Most people agree that respect for autonomy in law is vital to civility itself. Famed suffragist Elizabeth Cady Stanton emphasised that women having a right to exercise authority over their bodies was central to their ability to live as free human beings. 

True feminists have always espoused this simple idea, even as outliers argued that women should have the “freedom” to choose subjugation, as if one can experience freedom and oppression at the same time.

When slavery was abolished, nobody said we should “respect” the wishes of black people who wanted to “choose” to remain enslaved because they rightly feared for their lives if they walked free. We rejected without discussion the idea that a free man could ever “choose” slavery, yet we embraced a definition of consent in rape law that evaded this clarity of thought.

In many legal codes in the United States and around the world, the word consent has no clear meaning, which means a woman’s right to decide who touches her, when, and under what conditions, is offset by what others, including rapists, think the word means. If a woman is certain she did not consent, but a rapist claims that he thought she consented, he can walk away scot-free. Mathematically, it’s like saying a woman’s 100 per cent authority over her body is diminished by however much weight law assigns to the rapist’s opinion. 

In some jurisdictions, a rapist’s mistaken opinion must be “reasonable.” In others, there is no requirement of reasonableness, which means even unreasonable mistakes and demonstrably false claims can outweigh a credible woman’s actual non-consent. Allowing rapists to make “mistakes” is tantamount to giving men an ownership interest in women’s bodies. It means a little bit of rape is OK. It means slavery is OK.

To fix rape law, the legal definition of consent should be modified to remove provisions that take a rapist’s state of mind into account and add provisions that increase the quality of law’s respect for women’s autonomy. Ideally, consent should be defined as a “knowing, intelligent, and voluntary” decision to participate in a specific act.

Knowingness refers to a woman’s awareness of the circumstances and appreciation for the consequences of her decision. Intelligence refers to a woman’s capacity to comprehend the circumstances and understand the nature of the act. Voluntariness asks whether a woman’s decision is free from coercion, including cultural, social, economic, interpersonal and other pressures. These factors are common considerations in laws that assess whether a decision was made freely, as when a criminal consents to a waiver of his right to remain silent.

Scholars have complained about the legal definition of consent for more than a century, yet proposed solutions over the years have oddly veered away from focusing on the quality of the victim’s state of mind. Even recently, advocates have celebrated the use of phrases such as “affirmative” or “enthusiastic” consent, even though they do nothing for autonomy because they are not focused on the victim’s state of mind. 

To the contrary, these are objective criteria that validate the idea that a rapist’s state of mind matters by permitting consideration of his opinion as to whether a victim’s consent was enthusiastic or affirmative.

If autonomy is to have any value in rape law, all factors that render a rapist’s state of mind relevant must be eliminated. According zero legal value to a rapist’s state of mind does not create strict liability because the state must still prove non-consent beyond a reasonable doubt, which is the highest possible standard of proof. A man cannot be found guilty solely because the act occurred, as he could if he raped a child. 

Non-consent must be proven, and the accused should be granted broad authority to cross-examine the victim with all relevant questions, so the jury can assess her credibility fairly, and with due regard for the important rights of the accused.

Until consent is an entirely subjective test, where the only state of mind that matters is that of the victim, rape will continue at epidemic rates. Defining consent to include consideration for the state of mind of a rapist incentivises rape and enables public officials to blame the rapist’s mistake for why charges cannot be filed or why plea bargains have to be made. 

Even jurors must be forgiven when they vote not guilty — where proof of guilt is clear — because as powerful as the evidence might be, when a judge tells them they must take a rapist’s claimed mistake into account, they can feel legally compelled to acquit.

Wives and partners of rapists are especially vulnerable to laws that value rapists’ claimed mistakes because rape shield laws that are supposed to prevent admissibility of a victim’s prior sexual activity include an exception for prior sexual activity with the defendant. This means that past consensual behaviour between the victim and the rapist is fair game at trial, even though it has no bearing on whether the victim consented on the night in question. 

In turn, the rapist can use that evidence to support his claim that he made a mistake about the victim’s consent.

Of course, none of this would be possible if men had not long ago established their dominant legal status in constitutions and other foundational legal documents. Where conditions of dominance are present at the baseline, laws can be written and enforced in a manner that subjects the subjugated class to weaker rights and worse treatment.

Our challenge, then, is not only to amend defective rape laws but also to repair constitutions so that they mandate equal treatment of women by all government officials and under all laws. On this issue we have far to go. 

In 2020 the United Nations released a report on the global status of women in which it said that “no country has achieved gender equality.” The US constitution is among the worst offenders because it has never granted women legal equality, and neither of the two major political parties sincerely supports women’s equality.

While fighting for equality, we should also rethink our approach to rape law, and demand a new definition of consent that effectively protects women’s autonomy. We cannot prevent all offensive human contact, but we can do a lot better.

Wendy Murphy is a former sex crimes prosecutor who served as visting scholar at Harvard Law School; she teaches sexual violence and law reform at New England Law | Boston where she also directs the Women’s and Children’s Advocacy Project under the Center for Law and Social Responsibility. Follow her on X at @wmurphylaw.