SEXUAL ABUSE OF POWER

michal buchhandler-raphael, university of virginia law school

Abstract

This Article argues that sexual abuses of power stemming from professional and institutional relationships justify criminalization. At a normative-theoretical level, the Article contends that coerced submission to unwanted sexual acts in professional and institutional settings demonstrates not only unwanted and harmful sexual conduct but also nonconsensual sex. The Article suggests that the current understanding of consent to sexual relations is flawed, because rape law’s contemporary consent standard focuses on an objective permission-giving act, which fails to recognize that even an explicit verbal authorization sometimes constitutes merely apparent consent. This reality calls for adopting a modified definition for consent to sexual relations that would acknowledge two much-needed components: the complainant’s state of mind (i.e. subjective willingness) and the parties’ mutual decision/agreement to engage in sex. The second part of the Article focuses on the doctrinal implications of the above conclusions by offering a model that would enable criminalizing these abuses above and beyond the cases in which threats to harm are established. It aims to expose the links between sexual abuses of power and the definition of consent, namely, consent is not obtained when it is induced by fears and pressures stemming from sexual abuse of power, authority, trust, influence and dependence. To expand the scope of the term “sexual coercion”, the definition of authority must include additional forms of power, above and beyond the official or formal capacity to enforce obedience. It must incorporate the perpetrator’s ability to dominate, influence, affect, and control the actions and decisions of vulnerable victims in professional and institutional settings.