Thursday, July 22, 2021
Anna High, Sexual Dignity in Rape Law, 33 Yale J. Law & Feminism (2021)
Dignity is a famously contested concept, suggesting its deployment as a legal principle should be closely scrutinized. This Article sets out a functional and contextual analysis of dignity as an organizing principle underpinning rape law, which I term “sexual dignity”. Based on sexual violence theory, I trace the “democratization” of sexual dignity over time, as dignity and attendant rights of autonomy and equality have gradually extended from man to the (qualified) woman to women as a group, and identify an emerging contemporary feminist consensus on the meaning of sexual dignity. This framework is then applied to a critical review of how judges across common law jurisdictions understand and use dignity in decisions on rape. The caselaw of sexual dignity illustrates that dignity is a usefully capacious concept for exploring and condemning the multiplicity of rape’s harms and wrongs. However, uncritical engagement with sexual dignity can be harmful, with implications both for rape law and for the regulation of sexual behaviour generally. As such, I argue that robust and reflective engagement with sexual dignity is both necessary and productive.