Challenging the theoretical foundations of rape law: insights from theories of vulnerability & penetration as a prima facie wrong 

The criminal justice system is failing sexual assault complainants. As Temkin and Krahe have coined, there is arguably a significant “justice gap.” Which refers to the difference between the estimated rapes and sexual assaults perpetrated, and the number of cases resulting in conviction. Despite legislative reforms and procedural changes, rates of reporting and convictions for rape and sexual assaults have remained low. Therefore this paper intends to delve deeper into the foundations of the legal subject to identify the potential source of the problematic response to sexual assaults, and to suggest a potential route forward. To do so, it will use insights from theories of vulnerability to reflect on our understanding of what it means to be human, encouraging a shift in the legal understanding of personhood. Drawing on our embodied vulnerability, tackling the non-desirability of vulnerability, and identifying our relational ethical obligations to one another can act as a potential starting point for change. This lens, coupled with Madden Dempsey and Herring’s argument that penetration requires justification could open the opportunity for a new approach to sexual assault legislation. The implications and potential of the law if it operated with these principles at the core will be explored.