The Element of Non-Consent in the Offence of Rape: A Focus on Peruvian Law
During the past two decades, many transnational and domestic statutes that regulate the offence of rape have turned away from considering violence or threats as necessary modalities of the offence and have begun treating non-consent as its essential element. This transition can be seen in recent international human rights treaties and normative documents, judgments of international courts, and domestic legal reforms. Currently, there is a solid legal consensus behind non-consent as the standard by which to differentiate between an act of sexual self-determination and the offence of rape.
Despite the recognition of non-consent as the central element of the rape offence, the meaning and interpretation of consent as a legal concept still pose several contentious issues. Should consent be understood as an internal mental state or as a communicative act? When should the law consider it to be valid? Does non-consent need to be explicitly expressed (“no means no” model), or should non-consent be assumed unless expressed otherwise (“yes means yes” model)? If non-consent is to succeed as a critical element of the rape offence, a precise legal definition that can be used to resolve concrete cases is indispensable.
Given that legal systems differ in how they adopt and apply law, this dissertation focuses on a single jurisdiction: Peru. In 2018, the Peruvian Congress issued Law No. 30838, which modified the rape offence in the Criminal Code by incorporating the element of non-consent. It did not, however, provide a statutory definition of the term. In addition, as yet, no relevant local academic literature has been published nor jurisprudence issued about how to understand non-consent in this context.
This research project concentrates on Peruvian law and draws from international and domestic criminal law frameworks on non-consent in rape offences and from criminal law theory discussions on these matters. The project, in turn, will contribute to these broader debates.
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