A Comparative Study of Criminalization Models of Rape: From the Perspective of the Evolution of Standards for Determining Sexual Consent

Abstract

In European and American criminal law, the regulation of rape has revolved around the question of how to determine whether sexual activity is “against a woman’s will.” This debate has produced four distinct standards for identifying sexual consent. Under traditional rape law, consent turned on a woman’s physical resistance—a criterion that fails to capture what rape actually is. Driven by progressive feminist thought, the affirmative consent standard, which foregrounds women’s sexual autonomy, has gradually gained traction in academic circles and spurred a wave of rape law reform across the globe. Yet the affirmative consent standard cannot fully account for the new forms of gender relations that have emerged in contemporary society, and whether it can be applied in China’s judicial practice warrants careful scrutiny. At the same time, even among the countries that have adopted affirmative consent, most have softened the standard—whether by limiting its scope of application or by adjusting sentencing ranges. Drawing on this international experience, China should attend to the diverse trajectories along which these legal rules have developed and adapt progressive ideas to local culture and social conditions, to strike a balance between rights protection and judicial fairness.