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44 Colum. J. Transnat'l L. 940 (2005-2006)
Defining Rape Internationally: A Comment on Akayesu

handle is hein.journals/cjtl44 and id is 948 raw text is: Essay Defining Rape Internationally: A Comment on Akayesu CATHARINE A. MACKINNON* Each time a rape law is created or applied, or a rape case is tried, communities rethink what rape is. Buried contextual and experiential presumptions about the forms and prevalence of force in sexual interactions, and the pertinence and modes of expression of desire, shape public consciousness and judicial determinations of law and fact. The degree to which the actualities of raping and being raped are embodied in law tilt ease of proof to one side or the other and contribute to determining outcomes, which in turn affect the landscape of expectations, emotions, and rituals in sexual relations, both everyday and in situations of recognized group conflict. Illegal rape is commonly defined to revolve around force and unwantedness in sexual intercourse.1 Many jurisdictions-by statute, interpretation, or in application-tend to emphasize either * Elizabeth A. Long Professor of Law, University of Michigan Law School; Fellow 2005-2006, Center for Advanced Study in the Behavioral Sciences (CASBS), Stanford, California. These remarks in their original form were delivered at a workshop at the International Criminal Tribunal for Rwanda, Arusha, Tanzania, on November 15, 2003. Jessica Neuwirth, Judge Navanethem Pillay, Kent Harvey, Steve Schulhofer, and Renifa Madenga are owed special thanks for their work and support, as are Michele Ehlerman and the University of Michigan Law Library for their excellent research assistance. This Essay is collected in CATHARINE A. MACKINNON, ARE WOMEN HUMAN? AND OTHER INTERNATIONAL DIALOGUES 237 (2006). 1. For a useful review, see Prosecutor v. Kunarac et al., Case Nos. IT-96-23-T & IT- 96-23/1-T, Judgment (Feb. 22, 2001), available at http://www.un.org/icty/kunarac/trialc2/ judgement/kun-tj010222e.pdf. The Court groups factors constitutive of rape into three broad categories: (i) the sexual activity is accompanied by force or threat of force to the victim or a third party; (ii) the sexual activity is accompanied by force or a variety of other specified circumstances which made the victim particularly vulnerable or negated her ability to make an informed refusal; or (iii) the sexual activity occurs without the consent of the victim. Id. 442.

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