Analysing models of consent in rape and their impact on the criminal justice system

Abstract

Though non-consent is the central constitutive element of rape, the law has yet to suitably develop a clear-cut standard of non-consent that demonstrates clearly the freedoms protected by criminalization of rape. Despite the fact that consent has been spoken of in relation to the offence of rape and sexual autonomy for a long time, it still is still a disordered notion at times, especially where interpreting the law comes in. Unfortunately, where the Maltese law succeeds in parts, it fails in others, partly because the consent model is under-developed. This dissertation investigates the models of consent that exist in Malta and in diverse jurisdictions, as well as their implications and impacts on the criminal justice system, in order to determine strategies of improvement. Both local and foreign laws must be looked at to examine similarities and discrepancies, and to identify the hurdles that emerge and how they can be cleared. The dissertation indicates the obstacles faced primarily by the victims and the prosecutors during criminal proceedings, when the law is unclear or misinterpreted, and explores the possibilities of improvements, their urgency and their demand. Shifting towards consent-plus standards within the legislation is of paramount importance to encourage victims to report and to serve justice. As it stands there seems to be an expectation of injustice, rather than one of equality and freedom.