Conceptualizing the Role of Consent in the Definition of Rape at the International Criminal Court : A Norm Transfer Perspective

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Title: 
Conceptualizing the Role of Consent in the Definition of Rape at the International Criminal Court : A Norm Transfer Perspective
Journal Citation: 
20(4) INTERNATIONAL FEMINIST JOURNAL OF POLITICS, 624-643 (2018)

Feminist scholars are in dispute over whether modern international criminal legal standards on sexual and gender-based violence (SGBV) should influence domestic contexts through the process of ‘norm transfer’. While some feminist scholars believe that the omission of the absence of consent in the International Criminal Court’s (ICC) rape definition is an improvement on the domestic approach, others note that the definition’s focus on conflict and violence reflects its exceptionality and distinctiveness from SGBV in domestic peacetime contexts. This article engages with this debate by analyzing the capacity of the ICC’s complementarity-based system to affect domestic law through feminist norm transfer. The article articulates the current shortcomings of the ICC’s rape definition, including the definition’s failure to account for all ways in which the crime of rape may manifest. The article then argues that consent can, and should, be understood as an implied element of the ICC’s rape definition. Finally, the article analyzes how consent functions as a defense in ICC legal proceedings.