Rape
Rape refers to any unwarranted sexual intercourse committed without the consent of either party. In 2001, the International Criminal Tribunal for the former Yugoslavia (ICCTY) delivered a landmark judgment that had the result of classifying rape as a crime against humanity (Dixon, 2001). This meant that one could now be tried and convicted in an international court for rape. The critical theory suggests that law is inadequate in effectively fighting the culture of rape. The theory holds that there are weaknesses and deficiencies inherent in the law that make the latter an abettor of rape. The purpose of this paper is to examine the humanitarian crime of rape, as seen from the critical theory point of view. This paper will illuminate some of the suggestions made by the critical theory on why rape happens and how to effectively kick out rape from the society. This will be attained by first reviewing existing literature on rape. The paper will then explore the critical theory and its adequacy in explaining rape. It will then investigate some of the policy implications that will result from the influence of the critical theory to the crime of rape. This paper finally concludes by suggesting that rape is a grave international crime that continues to infiltrate our society but can be obliterated by implementing some of the proposals derived from the critical theory.
Literature Review
Amnesty International reported that a major challenge in the investigation and subsequent prosecution of rape is the element of consent in the crime (Amnesty International, 2011). Some states only require a lack of consent for sexual intercourse to be classified as a crime. Amnesty, however, clarifies that in most instances, there is consent but the consent is attained through coercive measures accompanied with threats. It emphasizes that this is one of the loopholes in legislation and this should be addressed to ensure comprehensive protection against rape. Amnesty reported that rape becomes rampant whenever there is war and as such, the International Criminal Court has jurisdiction to try and sentence anyone who commits the offence of rape as a crime against humanity. The report proposes that the crime of rape needs to be broken down into constitutive elements. For example, the abuse may be different from any sexual exploitation that leads to sexual violence. The report suggests that there should be a comprehensive legal framework that deals with all the constitutive elements of rape.
Theoretical framework
The critical theory suggests that the problems in the society come from the community itself and cannot be resolved by law but rather by the society itself. The critical theory suggests that the law has inherent flaws and is not adequate in providing answers to any of the challenges that plague the world. The Critical Theory scholars maintain that the law is not neutral or objective and, as such, cannot adequately solve the problems in society (Rasmussen, 2012). The critical theory suggests that the law is not neutral and, as such, cannot sufficiently eradicate the challenges in society. For example, the theory suggests that the law is a ‘man.’ This means that the law is biased towards solving the issues of men at the cost of resolving women’s issues. Scholars of the critical theory hold that when the law was enforced it was developed by men and a woman’s opinion was never considered (Farias Ferreira, 2013). The theory suggests that because of this, the law becomes a tool for subjugating women. The theory has also indicated that the law is biased towards the rich and is sensitive to the issues of the wealthy and social elites but takes little or no consideration to the challenges faced by the poor (Battista & Sande, 2019). The theory, in essence, challenges the effectiveness of the law and proposes that, in some instances, the law is an aider of crime.
Analysis of the Critical Theory in explaining Rape
The critical theory suggests that the law leads to marginalization of some groups of people and is inadequate to completely address the challenges of the society. With rape, it is argued that the institutions that enforce the law are the same institutions that have sabotaged its effectiveness hence increase in the prevalence of rape (Schott, 2015). For example, the entire process of trying and sentencing of perpetrators of rape is so undignifying for the rape victim that they prefer not reporting the incident. Many rape victims attests that the litigating process is tedious, and inconsiderate to the victim per se. (Threadgold, 2015). This causes inexplicable pain to the victims of rape and most prefer to keep the incident to themselves to have some peace of mind. Thus, justice may not be served to the perpetrators and hence they get away with the rape crime without any form of punishment (Quilter, 2011). This results in an increase in the number of rape cases in the society.
The critical theory has been very effective in discussing some of the weaknesses and loopholes in law that may inadvertently lead to an increase in the rates of rape. The theory provides an essential opportunity for challenging the status quo and amendment of the law to ensure adequate protection against rape. The critical theory demonstrates the need for rearrangement of the social order and raising awareness on the silent provisions of the law that may be abettors of rape (Mardorossian, 2002).
The critical theory fails to appreciate the magnanimous role played by law in reducing the prevalence of rape. The law has established institutions and enacted policies that help in the recovery of rape victims and creating awareness of the same. Although the effectiveness of the law is far from the expectation, it has assisted in reducing incidences of rape without which the situation could have been worse. A scrutiny of the critical theory reveals that it has failed in providing a way forward regardless of its clarity in revealing the flaws of laws against rape (Rooney, 1983). The theory is robust in showing the loopholes in the law and how the law has led to the institutionalization of rape. Still, it fails to provide any solution to the challenges it identifies that would not result in anarchy.
Policy Implications
The critical theory provides invaluable insights that will guide any subsequent policies and legislation intended to fight against rape. Policy makers will be keen to focus on the gaps identified by the critical theory and find pragmatic ways of addressing them. Policy makers will have challenges in repealing any misogynistic laws and developing laws that respond to the issue at hand. Legislators will have to seek the opinion of victims of rape on how they think the law can be formulated. They will have the arduous task of evaluating existing policies and reviewing any loopholes in the law. This will involve a wholesome review of laws and legislation of new pragmatic and responsive amendments.
Conclusion
Rape is a heinous crime against humanity that continues to plague the entire world. The critical theory provides that the law on its own is insufficient in dealing with issues in the society. The theory suggests that the law, as it is, is an aider of crime. Remarkably, there has been growing rate of failure to report rape cases due to the psychological trauma the judicial processes further inflicts to the victim. As the critical theory proposes, the law has aided the commission of rape by having ineffective legal structures that make victims shy away from pursuing justice. The theory, therefore, recommends that the law should be reviewed in its entirety and new stringent measures put in place. This will help in the decimation of rape from the society.