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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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