Abstract
This Article proposes a novel assent-based framework for understanding rape law, challenging the traditional focus on consent as the sole determinant of rape. It argues that rape occurs when there is an absence of assent, rather than simply a lack of consent. The Article distinguishes between assent, which reflects a feeling of willingness, and consent, which is an exercise of autonomy that waives one’s right to bodily integrity. By incorporating this distinction, the assent model provides a more nuanced approach to rape law, explaining why certain deceptions—such as misrepresenting the nature of a sexual act—constitute rape, while others do not. The model also addresses complex issues such as consent to sex while unconscious, so-called gender fraud, partner impersonation, and HIV nondisclosure, offering a consistent methodology for determining when deception vitiates assent. The Article further explores the implications of this framework for tort law, university sexual assault policies, the regulation of the body in a range medical contexts, and philosophical debates on the ontology of consent. Ultimately, this assent-based theory of rape offers a more balanced approach to protecting both bodily rights and personal autonomy, while reimagining the role of consent in shaping sexual agency and liberation.
Recommended Citation
Seran Gee,
Lies That Matter: Retheorizing Rape and the Limits of Consent,
26
Nev. L.J.
569
(2026).
Available at:
https://scholars.law.unlv.edu/nlj/vol26/iss2/7