Volume 1 issue 2 October 2013

Juridical Rape & Courtroom Lack of Belief: A Wittgensteinian View on Consent

Rossella Pisconti
This paper focuses on the issue of consent in rape jurisprudence and in particular sets out to explore the issue via the application of a Wittgensteinian perspective. The presence of ‘prior relationship with the accused’ has long been used to create doubt as to the probity of the victim’s claim that the event in question was non-consensual. This has been mostly prejudicial for women since patriarchal ideological influences have intervened in the cross-examination to discredit them as complainants and although reforms to the law have occurred, attempts may still be made to undermine victim accounts by reference to prior relationship.

In order to demonstrate that the use of the concept of consent in English criminal law is prejudicial, the legal meaning of the absence of consent is explored from a conceptual Wittgensteinian viewpoint in selected rape cases where the complainant was not believed during trial. It is shown that the practice of asking the victim of rape to provide her sexual history evidence in order to express a judgment on her present situation has led in most cases to a prejudicial construction of female sexuality.