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Processes of Criminalization
in Domestic and International Law:
Considering Sexual Violence
Michelle Madden Dempsey

This paper considers the processes of criminalization in domestic and international law. In
so doing, it takes up the first area identified by the conference conveners:

Who apart from legislatures has…the power…to determine what

is substantively criminalized [in domestic law]? How different is
the process at the international level?

Section one outlines the processes of criminalization in domestic and international law,
respectively. Section two uses these accounts to examine the criminalization of two forms
of sexual violence – rape and sex trafficking– and concludes that both offenses are
criminalized far more broadly in international criminal law than in domestic criminal law.
The final section briefly outlines possible explanations for these disparities in the scope of
criminalization of crimes of sexual violence in domestic and international law.

I. Processes of Criminalization in Domestic and International Law

“Theorists are prone to talk…as if criminalization is a matter of decision by an authoritative
legal body – presumably a legislature.”1 On this simplistic account, one can identify what
has been criminalized by referring to definitions of crimes included in statutes or similar
documents.2 If a legislature enacts a statute defining conduct as criminal, then so it is. As
Duff and others correctly observed, however, an account of criminalization that begins and
ends at the point of legislative enactment is far too narrow.3 Not only does it exclude non-
codified systems of criminal law, it ignores the role of courts in interpreting (and sometimes
declaring) the elements of criminal offenses, and fails to account for other steps in the
process that may be necessary for criminalization.

                                                                                                               
1
Duff, et al. Criminalization: The Political Morality of the Criminal Law (OUP 2014), p. 2.
2
While this account of criminalization is theoretically simplistic, it is no simple matter to identify what has
been criminalized according to this account. Consider the complexity of such an undertaking in the US
context, where thousands of separate legislative provisions define conduct as subject to criminal sanction,
with only a small percentage “found jumbled together in Title 18, euphemistically referred to as the ‘Federal
Criminal Code.’” Ronald Gainer, “Federal Criminal Code Reform: Past and Future,” 2 Buffalo Criminal
Law Review 45, 53 (1998), cited in Doug Husak, Overcriminalization (OUP 2008) p. 9.
3
Duff, et al., n 1, p. 2.

 
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The question thus presents itself: what else must occur in order for it to be the case that a
particular type of conduct is criminalized? That is, what are the necessary and sufficient
elements in the processes of criminalization? And are these elements identical in both
domestic legal systems and in international law?

This section outlines the processes of criminalization in domestic and international law,
respectively. The key concepts at work in this section are definition, enforcement, and
concordance. Definition refers to the process by which certain conduct is defined as
criminal, whether by a legislature or court. In both the domestic and international contexts,
defining a particular type of conduct as criminal is a necessary but insufficient step in
criminalizing that conduct. Enforcement refers to the process by which particular instances
of conduct defined as criminal are actually prosecuted, adjudicated, and (typically)
subjected to punishment.4 In the domestic context, a minimal threshold of enforcement is
required in order for it to be the case that a particular type of conduct has been (or still is)
criminalized. Enforcement, however, is not required for it to be the case that a particular
type of conduct is criminalized as a matter of international law. Rather, in the international
context, concordance (that is, “the degree to which international actors and institutions refer
to, accept, and signal agreement with a norm”) can substitute for enforcement.5

A. Criminalization in Domestic Law

In modern domestic legal systems, the processes of criminalization include a wide range of
actions, performed by a variety of domestic legal actors. The processes of criminalization in
domestic law can be understood to include five steps:

(1) Definition – in which legislatures (or, less frequently, courts) define a

particular type of conduct as constituting a crime, while (typically) proscribing
some punishment for engaging in the prohibited conduct;

(2) Prosecution – in which police and prosecutors allege that particular incidents
of such conduct fall within the definition and pursue charges in particular cases;

(3) Conviction – in which fact-finders (juries or judges) convict, thereby

concluding that particular incidents do indeed fit within the definition of the
crime;6

                                                                                                               
4
I’m agnostic as to whether enforcement necessarily includes punishment. I’m tempted to think that cases
where defendants receive suspended sentences following conviction are nonetheless cases of enforcement
(and thus full criminalization). Yet, if sentences were routinely suspended, I would be inclined to think that
that the lack of punishment would undermine the case for saying that there is genuine enforcement.
5
Michal Ben-Josef Hirsch and Jennifer Dixon, “Norm Strength and the Norm Life Cycle” (draft, on file
with the author). Hirsch and Dixon borrow the term, “concordance,” from Jeffrey Legro, “Which Norms
Matter? Revisiting the ‘Failure’ of Internationalism,’ 51 (1) International Organization 31 (1997).
6
Another step in the process of criminalization can include appellate courts affirming the fact-finders’
conclusions, thereby ruling that evidence was sufficient as a matter of law to satisfy the definition of the
crime - or reversing a conviction on grounds of evidential insufficiency, thereby limiting the scope of the

 
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(4) Sentencing – in which judges determine a punishment for the crime upon
conviction; and

(5) Punishment – in which prison guards, probation officers, etc. carry out the
punishment in accordance with the sentence.

Let us refer to the first step as definition and steps two through five as enforcement. In order
for it to be the case that a particular type of conduct is criminalized in a domestic legal
system, both definition and enforcement are necessary. Which is to say, at least in municipal
legal systems, criminalizing a particular type of conduct is not merely a matter of defining
the conduct as criminal and proscribing a punishment for it. Rather, it is also, crucially, a
matter of enforcement of the law in an adequate range of actual cases. It is, in Roscoe
Pound’s memorable phrase, not mere a matter of “law in books,” but also of “law in
action.”7

While universal enforcement is not required in order for it to be correctly said that conduct
has been criminalized in a domestic context, the likelihood of enforcement cannot be so
remote that the declaration of the conduct as criminal and the authorization of sanction for
violation become simply an empty threat. If a “law in the books” remains unenforced over a
sufficiently long period of time, the proscribed conduct is, in important respects, no longer
criminalized.8 As such, some minimum threshold of enforcement is necessary.

Consider a criminal prohibition that is never enforced, for which no suspect is ever arrested,
no defendant charged. In an important sense, this failure to enforce the prohibition would
mean that the conduct is not criminalized. As Duff and others put the point, “[s]ometimes
policing policies might amount to the de facto decriminalization of types of conduct that the
law formally defines as criminal.”9 Sometimes this lack of enforcement can result from a
good faith effort by law enforcement officials to narrow the scope of an arguably overbroad
statutory definition – while other times it results from a bad faith refusal to hold perpetrators
accountable. 10 Similar considerations apply when the prohibition is enforced up to the point
of arrest and charging, but cases are routinely dismissed, such that they never (or almost
never) result in conviction.11 Under such circumstances, one would rightly be tempted to
conclude that in an important sense, the conduct had not been criminalized. Finally, upon

                                                                                                                                                                                                                                                                                                                                           
original statutory definition of the crime to a narrower set of cases.
7
Roscoe Pound, "Law in Books and Law in Action," 12 American Law Review 44 (1910).
8
Note re: telephone line interference.
9
Duff, et al. n 1, p. 11.
10
As to the former, see, eg, Policy for Prosecutors in Respect of Cases Encouraging or Assisting Suicide
(Crown Prosecution Service, 2010), specifying the conditions under which Crown Prosecutors will decline
to enforce criminal prohibitions against assisting a suicide, despite the fact that the conduct falls within the
definition of the prohibited conduct. See discussion at Duff, et al., n 1, p. 11-13.
11
For example, routine dismissal of domestic violence cases upon the victims’ request effectively
decriminalizes domestic violence per se, by narrowing the category of conduct that is actually criminalized
to cases involving victim support. See, Michelle M. Dempsey, PROSECUTING DOMESTIC VIOLENCE: A
PHILOSOPHICAL ANALYSIS (OUP, 2008).

 
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conviction, enforcement requires that the defendant be sentenced and punished for the
violation of the criminal prohibition. At very least, the failure to impose a sentence upon
conviction, or the routine suspension of sentences without punishment, detracts from the
sense in which the conduct at issue has truly been criminalized.12
B. Criminalization in International Law

Before outlining the processes of criminalization in international law, it is first necessary to

gain some clarity regarding what international criminal law includes. Borrowing from
David Luban, we can note a distinction in international criminal law between treaty-based
criminal law and what he refers to as “pure” international criminal law.13 The former
includes criminal laws created by multilateral treaties regarding subjects such as piracy,
torture, counterfeiting, smuggling, trafficking, apartheid, etc., while the latter refers to the
“distinctive body of law that originated in the post-World War II international tribunals,
designed to punish a handful of the most evil crimes: crimes against humanity, genocide,
serious war crimes, and aggressive war.”14

The processes of criminalization differ as to each kind of international criminal law. Treaty-
based international criminal law involves the creation of multilateral treaties, the terms of
which define prohibited conduct. This step is similar to the definition of prohibited conduct
by legislatures in domestic criminal law, insofar as the multilateral treaties are statute-like
documents that define the elements of the prohibited conduct. Beyond that point, however,
there is little similarity between the processes of criminalization in domestic law and those
at work in treaty-based international criminal law. The are no international police officers
authorized to act on behalf of an international government to investigate and makes arrests
in response to conduct defined as criminal under the terms of these treaties, no international
prosecutors to pursue charges, no international courts to adjudicate alleged offenses, and no
international mechanisms for imposing punishment upon conviction. Rather, a hallmark of
treaty-based international criminal law is that it assigns to State parties the responsibility of
criminalizing the conduct, by requiring parties to enact domestic criminal laws prohibiting
and punishing the conduct defined as criminal in the treaty. 15 This process of
criminalization thereby creates what Duff, et al. characterize as crimes with a “double-
layered” structure: “they constitute at the same time municipal criminal offences (insofar as

                                                                                                               
12
As noted above at n 4, I’m on the fence regarding whether a routine failure to punish (routine suspension
of sentences) negates criminalization or merely detracts from it.
13
David Luban, Fairness to Rightness: Jurisdiction, Legality, and the Legitimacy of International Criminal
Law, in Samantha Besson and John Tasioulas (eds.) The Philosophy of International Law (OUP 2010), pp.
570-588. Luban divides international criminal law into three parts, including “domestic criminal law
applied transnationally” in addition to treaty-based and “pure” international criminal law. In what follows, I
will focus only on the latter two kinds of international criminal law.
14
Luban, 13, p. 572.
15
Luban, 13, p. 572.

 
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they are part of domestic criminal codes) and international offences (insofar as they are
enshrined in international treaties…).”16

“Pure” international criminal law arises in the context of addressing the “most evil crimes,”
through adjudication by specially-constituted tribunals - the Nuremberg and Tokyo
tribunals, the International Criminal Tribunal for the Former Yugolslavia (ICTY), the
International Criminal Tribunal for Rwanda (ICTR), the Special Courts for Sierra Leone,
Cambodia, and East Timor - and the International Criminal Court (ICC). 17 Given the
institutional structure provided by these tribunals and courts, the processes of
criminalization in “pure” international criminal law more closely resemble the processes of
criminalization in domestic criminal law in some respects. For the existence of functioning
tribunals with investigative, prosecutorial, and adjudicatory capacities makes some level of
enforcement possible at the international level. As such, unlike treaty-based international
criminal law, which relegates all enforcement back to domestic criminal legal systems,
“pure” international criminal law performs many enforcement processes within its own
specifically international legal system.18 Moreover, at least when it comes to the ICC, the
processes of defining particular conduct as criminal is relevantly similar to domestic
criminal law.19 Definitions set forth in the ICC’s Elements of Crimes specify particular
types of conduct as criminal for purposes adjudication before the ICC, thus providing a
parallel to the definitional step in the domestic criminal law context.20

Above, I suggested that enforcement is not a necessary step in the processes of

criminalization in international criminal law. Yet, if “pure” international criminal law has
enforcement mechanisms available to it, then why not require enforcement as a necessary
step in this context as well? Why not claim, as I did with domestic criminal law, that a
failure to enforce a criminal prohibition effectively undermines its criminalization? Three
reasons counsel against requiring enforcement before it can be said that a particular type of
conduct has been criminalized in international criminal law. First, the only kind of
international criminal law that has an enforcement mechanism is “pure” international
criminal law – and international criminal law is broader than just the “pure” international
criminal law tribunals. If one were to require enforcement of criminal prohibitions in order
to establish that particular conduct was criminalized as a matter of international criminal
law, one would have to disregard treaty-based international criminal law – since this genre

                                                                                                               
16
Duff, et al., n 1, p. 16.
17
Luban, n 13, p. 572.
18
The international tribunals do not, however, impose punishment. While they maintain detention facilities,
post-conviction sentences are served in prisons administered by domestic legal systems. (cites*)
19
The same is not true of specially constituted tribunals such as the ICTR and ICTY. For, in drafting the
resolutions that established these tribunals, the elements of the crimes to be addressed by the tribunals “were
not enumerated as in a criminal code, but simply as a specification of the jurisdictional authority of the
relevant court.” Cassese’s International Criminal Law (3rd ed.) (revised by Antonio Cassese, Paola Gaeta et
al.) (OUP 2013).
20
ICC Elements of Crimes, Doc. No. ICC-PIDS-LT-03-002/11 (adopted 2 November 2000).

 
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of international criminal law comes with no enforcement mechanism.21 Second, even within
the limited category of “pure” criminal law, the ICC is the only tribunal that is designed to
have a continuous enforcement mechanism into the future without a completion strategy.
Whatever enforcement had been achieved in the past with respect to closed tribunals, it has
now ended. Thus, if we require enforcement as a necessary element of criminalization in
international criminal law, we would throw into question the status of norms that arose
during enforcement by now-closed tribunals.22 Finally, it would be unwise to require
enforcement as a necessary element in the processes of criminalization in international
criminal law because, well, there is so very little actual enforcement of international
criminal law. Whatever “minimal threshold” one might reasonably specify before it can be
said that a criminal prohibition is actually being enforced, it is unlikely to be satisfied by
what is happening in international criminal law. Indeed, in more than 10 years, the ICC has
had only 2 convictions.23

Rather than requiring enforcement as a necessary step in the processes of criminalization in

international law, it is preferable to look to concordance – or “the degree to which
international actors and institutions refer to, accept, and signal agreement with a norm.”24
By combining definition and concordance as necessary and co-sufficient elements of
criminalization in international law, we eliminate the need for enforcement as a necessary
element of international criminalization and replace it with a consideration that has long
informed the scope and content of international law: “the teachings of the most qualified

                                                                                                               
21
One might counter that treaty-based international criminal law does have enforcement mechanisms -
namely, the mechanism envisioned by treaties which relegate enforcement duties to State parties. This move
should be resisted for two reasons. First, if the enforcement is performed by domestic legal systems, then
treaty-based law would no longer be properly regarded as international criminal law, but as a hybrid form of
international-domestic criminalization. Second, insofar as domestic legal systems fail to enforce the
criminal prohibitions defined in treaty-based international criminal law, they are widely (and, I would
suggest, correctly) regarded as failing to comply with their international law obligations – not as
undermining the fact that the conduct defined as criminal in the treaty has indeed been criminalized as a
matter of international law. (Eg, if State X, a party to the Torture Convention, fails to “take measures to
prevent acts of torture in… its jurisdiction,” fails to “ensure that all acts of torture are offences under its
criminal law,” or fails to comply with any other obligation under the Convention, we (correctly) conclude
that State X is not complying with its obligations under international law – we do not conclude (nor should
we conclude) that torture isn’t really criminalized under international law.
22
Consider the criminalization of aggression in international criminal law. The criminal prohibition was
enforced at the Nuremberg and Tokyo Tribunals, but later “fell into oblivion,” with international actors
finding themselves unable even to define the elements of the crime until the 2010 ICC Review Conference
in Kampala – and, still to this day, there have been no international criminal trials for the crime of
aggression since 1947. Cassese and Gaeta, n 19, at p. 136-139. Yet, the fact that aggression has remained
criminalized as a matter of international criminal law all this time remains beyond serious dispute. (It
remained so, if only to provide the legitimacy needed to underpin the prosecutions at Nuremberg and Tokyo.
My point is that the processes by which aggression remained criminalized in international law all this time is
not due to its being enforced in international courts or tribunals – but in virtue of the strong concordance it
has enjoyed, despite its non-enforcement.)
23
Cite.*
24
Hirsch and Dixon, n 5, p. 6.

 
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publicists of the various nations.”25 The term “publicists” here meaning “learned writers,”
including, inter alia, scholars and jurists.26 While writers no longer enjoy Grotian (Grotius-
like?) influence over the development of international law, it bears noting that academic
publications and NGO reports do continue to exercise considerable influence in providing
“conceptual framework[s]” that inform our understanding of international law.27 Moreover,
as international institutions continue to have greater influence over the development of law,
statements contained in declarations, reports, and issue papers published by UN
organizations, treaty bodies, working groups, etc. can prove relevant in establishing
concordance.

What is it that the international actors must agree upon in order for it to be said that a
particular type of conduct defined by some treaty definition, international statute,
international tribunal, or court ruling constitutes conduct that has, as a matter of
international law, been criminalized? Simply put, they must agree (more or less) regarding
the scope of the conduct that counts as criminal under international law – and they must
signal their agreement on this point, by promulgating their views publically.28. Their
agreement need not be uniform (for the key here is merely concordance, not consensus –
which would imply a higher degree of agreement than is necessary29). They need not agree
in the sense of being happy about the fact that the conduct has been criminalized – they need
merely accept, publically, that in fact the conduct has been criminalized as a matter of
international law. Finally, they need not agree on where to draw every line at the margins of
what criminalization covers – rather, it is sufficient even if the agreement admits of some
gray areas.30

Where strong concordance exists as to whether a particular type of conduct has been
criminalized in international law, this fact should weigh strongly in favor of resolving the
question consistently with the concordant opinion. Conversely, where concordance is
lacking as to whether a particular type of conduct has been criminalized in international law,
that fact should be regarded as undermining confidence in claims that the conduct has been
criminalized.

                                                                                                               
25
Article 38 of the Statute of the International Court of Justice, p. 51.
26
Peter Malanczuk, Akehurst’s Modern Introduction to International Law (7th ed.) (Harper Collins, 1997),
p.51
27
Malanczuk, n 26, pp. 51-52.
28
Examples of such promulgation can include, inter alia, speeches, published reports, academic articles,
books, etc. See Hirsch and Dixon, n 5, p. 7.
29
Hirsh and Dixon, n 5, p. 7.
30
…which might not be such a bad thing. See, Jeremy Waldron, “Torture and Positive Law” Columbia Law
Review 1695-1702 (2005).

 
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II. Criminalizing Sexual Violence in Domestic and International Law
What can the discussion of the processes of criminalization in domestic and international
law set out above tell us about the criminalization of rape and sex trafficking? If the
account set out above is illuminating and what follows is plausible, it suggests that both rape
and sex trafficking are criminalized far more broadly in international law than they are in
domestic law. This section sets out a comparative analysis of the processes of
criminalization of each offense, in both domestic and international criminal law,
respectively. The final section will briefly outline some possible explanations for these
differences.

A. Rape

Rape is criminalized in both domestic and international law. 31 In domestic legal systems,
rape is a stand-alone crime – that is, a crime that can be charged independently of the
context in which it is committed.32 In international law, rape is a predicate crime that serves
as a building block in proving crimes against humanity,33 war crimes,34 and establishing the
element of “caus[ing] serious bodily or mental harm” for the purpose of proving genocide.35

This section examines the criminalization of rape in both domestic and international law,
drawing upon the necessary and sufficient elements of criminalization outlined above. That
is, in examining the definition of rape in domestic criminal law, we will examine both
definitions and enforcement - while in international criminal law, we will examine both
definitions and concordance.

How is rape criminalized in domestic law?36 A complete answer to this question would
come in two parts. The first part would focus on how rape is defined in domestic legal

                                                                                                               
31
The crime is referred to in some jurisdictions as “sexual assault” in the domestic criminal code. E.g.,
Canadian Criminal Code (R.S. 1985, c. C-46, Section 265).
32
Rape can also be a predicate crime in domestic legal systems, as seen in strict liability felony murder
statutes, or in rape triggering a presumption of extreme indifference to the value of human life in watered-
down versions of felony murder. See, e.g., US Model Penal Code 210.2(1)(b).
33
Prosecutor v. Jean-Paul Akayesu (Trial Judgment), International Criminal Tribunal for Rwanda, Trial
Chamber I, Case No. ICTR-96-4-T, 2 September 1998) paras 596-7, 686-7 (Akayesu); ICC Elements of
Crimes, Art. 7(1)(g)-1.
34
ICC Elements of Crimes, Art. 8(2)(b)(xxii)-1; Art. 8(2)(e)(vi)-1.
35
ICC Elements of Crimes, Art. 6(b), “Genocide by causing serious bodily or mental harm”- footnote 3,
providing that conduct causing serious bodily or mental harm “may include, but is not necessarily restricted
to, acts of torture, rape, sexual violence or inhuman treatment.”
36
This way of framing the question brings into view both the processes of criminalization and the
substantive content of the law – thus joining together (conflating?) what Nicola Lacey refers to as
“criminalization as pattern or outcome” and “criminalization as social practice.” Nicola Lacey,
“Historicizing Criminalization: Conceptual and Empirical Issues,” 72 (6) Modern Criminal Law Review
936, 943 (2009). On Lacey’s account, “criminalization as pattern or outcome” refers to what is or should be
criminalized, both in its formal aspects (eg, in statutes, treaties, judicial decisions), and its substantive
aspects (actual implementation of formal norms). “Criminalization as social practice” refers to the processes

 
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systems. This part of the answer would provide a comprehensive survey of statutory
definitions of rape as enacted in domestic legal systems, and domestic criminal court
opinions interpreting the scope of those definitions (or, in the absence of statutory
definitions, judge-made definitions of rape). The second part of the answer would focus on
the extent to which criminal laws against rape are actually enforced in domestic legal
jurisdictions – whether and how allegations are investigated and prosecuted,37

Undoubtedly, in both definition and enforcement, one should expect to find find significant
differences across domestic criminal legal systems in how they criminalize rape. At the risk
of oversimplifying, however, it can be said that there are two “common denominator[s]”
adopted by the “major national legal systems of the world” when it comes to defining rape.38

                                                                                                                                                                                                                                                                                                                                           
by which criminalization occurs –what social practices, performed by which actors, constitute
criminalization? We can map my account onto Lacey’s conceptual framework if we think of enforcement as
falling under the substantive aspects of “criminalization as pattern or outcome,” and concordance falling
under some aspect of “criminalization as a social practice.” I would be grateful for help in thinking through
whether Lacey’s framework can help clarify any of my points in this paper. I worry that the distinction she
draws makes it more difficult to reflect on how “criminalization as a social practice” informs the substantive
content of “criminalization as pattern or outcome.” (Or, in any event, I’m not sure I understand why it is
illuminating to separate “actual implementation of formal norms” from “criminalization as a social
practice”).
37
I was tempted to include the rate of victim reporting under the heading of “enforcement” – since,
especially with crimes such as rape, which typically occur in private, a lack of victim reporting can stymie
enforcement efforts. Still, it didn’t strike me as quite right to include the conduct of non-state actors
(victims) in evaluating the extent of enforcement. Rather, I think the connection between victim non-
reporting and enforcement is best captured by evaluating how investigations proceed, and not merely
whether they proceed. Thus, ceteris paribus, investigations that are conducted in a way that encourages
victims in reporting should be deemed to indicate higher levels of enforcement. Conversely, investigations
that are conducted in a way that discourages victims in reporting should be deemed to indicate lower levels
of enforcement. If this is right, then in determining how rape is criminalized in domestic legal systems, we
should attend to how different kinds of cases are investigated. If some kinds of cases (e.g., acquaintance
rape, cases involving intoxicated victims, rape of prostituted-persons, etc.) are investigated in a way that
discourages similarly situated victims from reporting in the future, then the correct conclusion is that those
particular types of conduct (raping an acquaintance, raping an intoxicated person, raping a prostituted-
person, etc.) are less criminalized than other types of “real” rape. Susan Estrich, REAL RAPE (Harvard
University Press 1988). (A similar point can be made regarding how prosecutions proceed. If victims are
subjected to a “second rape” through a traumatizing trial process, and this experience deters future reporting,
the legal system’s record of enforcement is thereby diminished. Rebecca Campbell, et al., “Preventing the
‘Second Rape’: Victims Experiences with Community Service Providers” 16 Journal of Interpersonal
Violence 1239 (2001).) If investigations and/or prosecutions are so ineffectual, traumatizing, etc., to the
point where some category of victims frequently fail to report being raped because they do not view the
criminal legal system as a viable remedy, then those kinds of rapes are, effectively, decriminalized due to
lack of enforcement.
38
Prosecutor v. Kunara, et al., (Trial Judgment) (International Criminal Tribunal for the Former
Yugoslavia, Trial Chamber, Case No IT-96-23-T & IT-96-23/1-T, 22 February 2001) para 437 (Kunarac)
(surveying definitions of rape found in criminal codes and case law of Argentina, Australia, Austria,
Bangladesh, Belgium, Bosnia and Herzegovina, Brazil, Canada, Chile, China, Costa Rica, Denmark,
England and Wales, Estonia, Finland, France, Germany, India, Italy, Japan, Korea, the Netherlands, New
Zealand, Nicaragua, Norway, Pakistan, the Philippines, Portugal, Sierra Leone, the Socialist Federal
Republic of Yugoslavia, South Africa, Spain, Sweden, Switzerland, the United States, Uganda and Zambia),

 
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First, rape involves a physical act of sexual penetration. Second, the key difference between
rape and sex is that rape involves non-consent.39 When it comes to enforcement, there is
rather more uniformity, with pretty much every domestic legal system doing a rather poor
job of enforcing criminal laws prohibiting rape, especially in cases of spousal rape,
acquaintance rape, rape-by-intoxication, and rape of prostituted-persons.40

How is rape criminalized in international law?41 It turns out that the question is not so
straightforward. Yet, by adopting the framework set out above (that is, by relying on
considerations of definition and concordance) we can begin to get a clearer picture of what
type of conduct is criminalized as rape in international law.

Let us begin with definitions. The first international criminal tribunal to consider the
definition of rape was the ICTR, in the Akayesu trial. The defendant was charged, inter alia,
with crimes against humanity by rape. Thus, in order to establish rape as the predicate
offense to crimes against humanity, the Chamber found itself in need of a definition of rape:

Considering the extent to which rape constitute crimes against

humanity, pursuant to Article 3(g)…the Chamber must define
rape, as there is no commonly accepted definition of this term in
international law. While rape has been defined in certain national
jurisdictions as non-consensual intercourse… The Chamber
defines rape as a physical invasion of a sexual nature, committed
on a person under circumstances which are coercive.42

By this point, it is clear that Akayesu has abandoned the domestic legal system’s insistence
that rape include an element of non-consent. In its place, Akayesu adopted a broader,
coercion-based definition of rape. Moreover, the Chamber held that “[c]oercive
circumstances need not be evidenced by a show of physical force,” but can be “inherent in

                                                                                                                                                                                                                                                                                                                                           
quoting “common denominator” language from Prosecutor v Furundžija (Trial Judgment) (International
Criminal Tribunal for the Former Yugoslavia, Trial Chamber II, Case No IT-95-17/1-T, 10 December 1998)
para 178 (Furundžija). For an illuminating discussion, see Valerie Oosterveld, “The Influence Of Domestic
Legal Traditions On The Gender Jurisprudence Of International Criminal Tribunals,” 2(4) Cambridge
Journal of International and Comparative Law 2(4), 825-849 (2013).
39
See, e.g., UK Sexual Offenses Act 2003, defining rape (section 1) and assault by penetration (section 2) as
requiring proof that victim “does not consent”; Canadian Criminal Code (R.S. 1985, c. C-46, Section 265),
defining sexual assault as “without consent”; US Model Penal Code Sexual Offenses Revision Project,
Proposed Section 213.2 (“sexual penetration without consent”).
40
Corey Rayburn Yung, “Policing Rape” http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2742855;
“How to Lie with Rape Statistics,” 99 Iowa Law Review 1197 (2014); [cites to other jurisdictions]
41
See n 36 for worries about how this way of framing either (1) unhelpfully conflates distinct conceptions of
criminalization (Lacey’s point), or (2) illuminates how social practices (enforcement, concordance) are
relevant to determining the substantive content of a criminal prohibition.
42
Akayesu, n 33, paras. 596-598;

 
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certain circumstances, such as armed conflict or the military presence of Interahamwe
among refugee Tutsi women.”43

But what did Akayesu have to say about the requirement (existant in domestic legal systems)
that rape must include sexual penetration? Does the term “a physical invasion of a sexual
nature” require proof of sexual penetration? The answer here is less clear. Let us begin
with the Chamber’s prefatory remarks in announcing its definition of rape:

[T]he central elements of the crime of rape cannot be captured

in a mechanical description of objects and body parts. The
Convention against Torture…does not catalogue specific acts in
its definition of torture, focusing rather on the conceptual
framework of state sanctioned violence. This approach is more
useful in international law. Like torture, rape is used for such
purposes as intimidation, degradation, humiliation,
discrimination, punishment, control or destruction of a person.
Like torture, rape is a violation of personal dignity...44

From these comments, we can safely assume that whatever “a physical invasion of a sexual
nature” might include, it need not include “a mechanical description of objects and body
parts,” or any “catalogue [of] specific acts.” Rather, it seems the key to understanding what
counts as a “physical invasion of a sexual nature” is to ask whether it is “used for such
purposes as intimidation, degradation, humiliation, discrimination, punishment, control,…
destruction of a person… [or] is a violation of personal dignity.” Now, consider these
comments in connection with Akayesu’s elaboration of the definition of sexual violence,
which includes rape. “[S]exual violence …may include acts which do not involve
penetration or even physical contact” (such as an incident in which the accused forced a girl
to strip naked and perform gymnastics in front of a crowd in a public courtyard constituted
sexual violence). 45

A conservative reading of Akayesu suggests that sexual violence is an umbrella category

under which rape falls – and that while some forms of sexual violence do not require
penetration, rape is a sub-category of sexual violence that does still require proof of
penetration.46 Yet, the dismissal of a “mechanical” approach to defining rape, which rejects
focusing on “specific acts,” provides just enough of a definitional hook to make the
argument that rape as criminalized in international law does not (or, at least, did not) require
penetration.47

                                                                                                               
43
Akayesu, n 33, para. 688.
44
Akayesu, n 33, para. 597.
45
Akayesu, n 33, para 688.
46
See, Akayesu, n. 33, para. 10A, supporting the reading of sexual violence as an umbrella category, but not
fully resolving whether rape requires penetration.
47
To my knowledge, Catharine MacKinnon has come the closest to making this argument expressly. See,
Catharine A. MacKinnon, Are Women Human: And Other International Dialogues (Harvard University

 
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I use the alternative phrasing “does not/did not” in the last sentence to signal three post-
Akayesu developments that are relevant as to determining whether rape requires proof of
penetration as matter of international criminal law. The first two developments suggest that
the answer is yes, penetration is required, and insofar as Akayesu might be read to suggest
otherwise, that reading does not reflect the current state of international criminal law
regarding the definition of rape. First, post-Akayesu cases in the ICTY and ICTR clearly
required penetration to establish rape.48 Second, the definition of rape adopted in the ICC’s
Elements of Crimes adopted a “body parts” focused definition of rape that explicitly
requires penetration (“however slight”).49 Yet, a third consideration – one grounded in
concordance – leaves the door slightly ajar for the possibility that rape as defined under
international criminal law, at very least, places less significance on whether a penetration
has occurred. For in addition to the analysis offered by Catharine MacKinnon demonstrating
some support for the broader reading, the International Committee of the Red Cross’s
account of cites the Akayesu definition of rape as a current reflection of international
criminal law, and specifically signals approval of the view that “the central elements of the
crime of rape cannot be captured in a mechanical description of objects and body parts.”50

Regarding the question of whether rape is defined in international criminal law in terms of
non-consent or coercive circumstances, the matter is somewhat more settled. In terms of
existing definitions, the ICC Elements of Crime definition extends to cases involving
coercion, and mentions non-consent only to clarify the status of cases involving victims who
were incapable of giving consent. 51 Indeed, in addition to recognizing coercion as
establishing this element of rape, the ICC’s definition arguably extends even further, by
explicitly covering cases involving “psychological oppression or abuse of power.”
Moreover, when we turn to considerations of concordance, we find widespread agreement
that, indeed, the current international criminal law definition of rape is significantly broader
than most all domestic definitions of rape, on grounds that domestic jurisdictions typically
require proof of non-consent, whereas the international definition does not.52

                                                                                                                                                                                                                                                                                                                                           
Press 2006) p. 239, arguing that later cases in the ICTY and ICTR, by requiring proof of “vaginal or anal
penetration by a penis or object, or oral penetration by a penis,” signal a regression away from Akayesu’s
rejection of a “body parts” definition of rape.
48
Cites. Although, one should be careful not to regard these cases as establishing and/or overturning
precedent in any event, since international criminal law does not adhere to common law principles of stare
decisis. Cassese and Gaeta, n 19, p. 18.
49
ICC Elements of Crimes, Arts. 7(1)(g)-1; 8(2)(b)(xxii)-1; 8(2)(e)(vi)-1.
50
See, International Committee of the Red Cross, Customary IHL Database, Rule 93, citing Akayesu’s
definition of rape as a current reflection of international criminal law, and specifically signalling approval of
the view that “the central elements of the crime of rape cannot be captured in a mechanical description of
objects and body parts.” https://www.icrc.org/customary-ihl/eng/docs/v1_rul_rule93 (last visited 23 March
2016). MacKinnon, n 47 (for the purpose of evaluating influence on concordance it may be worth noting that
MacKinnon is both a respected legal scholar on international criminal law and former Special Gender
Adviser to the Prosecutor of the International Criminal Court).
51
ICC Elements of Crimes, Arts. 7(1)(g)-1; 8(2)(b)(xxii)-1; 8(2)(e)(vi)-1.
52
See, Oosterveld, n 38, p. 836, describing that in the ICC definition of rape, “non-consent was not made an

 
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B. Sex Trafficking

The move to criminalize sex trafficking in domestic criminal codes gained steam in the early
2000s, in response to the wide support for the UN Protocol to Prevent, Suppress and Punish
Trafficking in Persons (Palermo Protocol).53 Since the criminalization of sex trafficking in
international law predated domestic criminalization (in most cases), our examination will
begin with the international definition and move to the domestic variations, before returning
to the issues of enforcement and concordance.

The definition of trafficking set out in article 3 of the Palermo Protocol provides as follows:

(a) “Trafficking in persons” shall mean the recruitment,

transportation, transfer, harbouring or receipt of persons, by means
of the threat or use of force or other forms of coercion, of abduction,
of fraud, of deception, of the abuse of power or of a position of
vulnerability or of the giving or receiving of payments or benefits to
achieve the consent of a person having control over another person,
for the purpose of exploitation. Exploitation shall include, at a
minimum, the exploitation of the prostitution of others or other forms
of sexual exploitation…

(b) The consent of a victim of trafficking in persons to the intended

exploitation set forth in subparagraph (a) of this article shall be
irrelevant where any of the means set forth in subparagraph (a) have
been used… 54

Three aspects of this definition are worth noting. First, the definition does not require any
movement or border-crossing to establish that trafficking has occurred. Second, the
definition sets out a broad range of means by which trafficking is recognized to occur.
(While the usual suspects such as “force… coercion…[and] fraud” are included, the
definition extends much further, to capture cases in which the trafficked person was
[merely] subjected to an “abuse of power” or an “[abuse] of a position of vulnerability.”)
Third, the definition stipulates that the victim’s consent to the exploitation irrelevant. This
final point has been usefully elaborated by the former UN Special Rapporteur on
Trafficking:

                                                                                                                                                                                                                                                                                                                                           
element of the crime that must be proven, thereby taking a very different approach than many domestic
jurisdictions.” See also, Louise Chappell, et al, “The Gender Justice Shadow of Complementarity: Lessons
from the International Criminal Court’s Preliminary Examinations in Guinea and Columbia,” 7 International
Journal of Transitional Justice 9, * (2013), “most penal codes contain a narrower definition than under the
ICC’s Elements of Crimes [insofar as they] require [inter alia] proof of the victim’s non-consent”)[check
Chappell cite*] Moreover, it is telling that the IRC’s recounting of the international criminal law definition
of rape entirely omits any reference to consent. IRC, n *
53
The full title includes “…Especially Women and Children, Supplementing the United Nations Convention
Against Transnational Organised Crime.” UN Doc. A/RES/55/25 (2000). As of 23 March 2016, the
Protocol has 169 State parties. (Cite*).
54
I have edited the definition to focus exclusively on adult sex trafficking.

 
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[I]t is logically impossible under the Protocol definition to have a
case of …trafficking in which one or more of the means set forth
in subparagraph (a) have not been used. At least one of the
means set forth in subparagraph (a) must be used, or else the act
in question does not count as an act of trafficking. [Thus], the
second clause of article 3 (b) (“where any of the means set forth
in subparagraph (a) have been used”) will be satisfied in 100 per
cent of… trafficking cases, because it is a logical prerequisite to
establishing that a case of…trafficking has occurred… Simply
put, the victim’s consent to the intended exploitation set forth in
subparagraph (a) is irrelevant in all trafficking cases under the
Protocol definition.55

Many domestic legal regimes have taken a rather more constricted view when it comes to
defining what counts as sex trafficking. Despite the fact that State parties are obligated
(under article 5) to criminalize the conduct defined as sex trafficking in article 3 of the
Protocol, many parties have spectacularly failed to do so.56 Indeed, many State parties,
including the US, UK, and Australia, define sex trafficking in terms that are far narrower
than the Palermo Protocol definition.57

Moreover, when it comes to enforcement, domestic criminal law systems routinely fail to
investigate and prosecute sex trafficking cases. Indeed, many domestic legal systems
continue to police the problem of sex trafficking by penalizing its victims - arresting them
on prostitution-related offenses, while allowing traffickers and exploiters to escape
sanction.58 Combining the narrow definitions of sex trafficking in domestic criminal legal
systems with the abject failure to enforce these laws leads to the conclusion that sex
trafficking is, for the most part, not criminalized in many domestic legal systems.59

Returning now to criminalization of sex trafficking in international law, perhaps the picture
drawn above regarding what type of conduct is criminalized as sex trafficking under the
Palermo Protocol was overly expansive. After all, the only considerations taken on board

                                                                                                               
55
Sigma Huda, Integration of The Human Rights of Women and a Gender Perspective: Report of the Special
Rapporteur on the human rights aspects of the victims of trafficking in persons, especially women and
children, UN Doc. E/CN.4/2006/62 (20 February 2006), paras. 38-40.
56
Michelle M. Dempsey, Carolyn Hoyle, Mary Bosworth, “Defining Sex Trafficking In International and
Domestic Law: Mind The Gaps,” 26 Emory International Law Review 137 (2012)
57
Dempsey, et al., n 56, at pp. 146-156. Canada is to be congratulated for adopting a broad definition of
trafficking in persons, which specifically provides that consent to exploitation is irrelevant. Canadian
Criminal Code, 279.01.
58
Michelle M. Dempsey, “Decriminalizing Victims of Sex Trafficking,” 52 American Criminal Law Review
207 (2015).
59
More needs to be said here regarding different kinds of cases. If you kidnap a suburban white girl, beat
her, imprison her, etc., then your conduct might be fully criminalized in the US domestic legal context, in
the sense that the laws prohibiting sex trafficking might actually be enforced against you. Outside this
narrow category of case, however, the actual extent of criminalization of sex trafficking is almost non-
existent.

 
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above concerned the matter of definition. While it is true that the Palermo Protocol
definition is broad, definitions are not the only relevant consideration when identifying what
type of conduct is criminalized under international criminal law. Rather, we must bring into
view the issue of concordance. Which is to say, we must look to the publications and
statements of respected scholars and international actors writing on the topic of the sex
trafficking, and ask whether there is significant agreement regarding what counts as sex
trafficking.

Despite the fact that building concordance (indeed, consensus) around a shared definition of
trafficking was a prime goal of the Palermo Protocol drafters, there remains a remarkable
lack of agreement amongst scholars and international actors regarding what type of conduct
is criminalized as sex trafficking under international law. 60 Indeed, some of the most
prolific and influential commentators regarding the Palermo Protocol definition have
sought, from the time of its initial drafting, either to ignore or obscure the language that
renders consent irrelevant, or to limit the expansive list of means used to define the
offense.61 While these interpretations of the Palermo Protocol definition are at odds with the
interpretation offered by the former UN Special Rapporteur,62 and other authors,63 there is
no denying that there is presently a lack of concordance around the definition of sex
trafficking in international law.64

III. What Explains the Vast Differences in the Criminalization of Sexual

Violence?
Four considerations might explain the vast differences in the range of conduct criminalized
in domestic and international law when it comes to sexual violence.

                                                                                                               
60
Dempsey, et al., n 56, p. 140.
61
Eg, Anne T. Gallagher, “Human rights and the new UN protocols on trafficking and migrant smuggling: A
preliminary analysis,” 23(4) Human Rights Quarterly 975, 986-987 (2001), omitting article 3(b) in
recounting the definition, thus omitting the language that renders consent irrelevant. Anne T. Gallagher,
Issue paper: Abuse of a position of vulnerability and other “means” within the definition of trafficking in
persons. Vienna: UNODC (2013), p. 78 (arguing that consent would negate the means element of
trafficking); Janie Chaung, “Rescuing Trafficking from Ideological Capture: Anti-Prostitution Reform and
its Influence on U.S. Anti-Trafficking Policy” 158 U Penn L Rev 1655, 1657 (2010) (claiming that the
Palermo Protocol “defines trafficking as the movement or recruitment of men, women, and children, using
force, fraud, or coercion,” thereby limiting the expansive list of means elements.)
62
Huda, n 55.
63
Michelle M. Dempsey, “What Counts as Trafficking: How legal methods can improve empirical
research,” Journal of Human Trafficking (forthcoming 2017), arguing that the “key question under the
Palermo definition is whether one of the illicit means has been used. If one of the means has been used, then
consent is deemed irrelevant. One can hardly then turn the question around and conclude that consent is
relevant to determining whether one of the means has been used. Yet, on Gallagher’s interpretation, the
relationship between the means and consent is turned around entirely – so that the means element is not
established unless there is no consent.”
64
Also discuss UN Women unofficial “Note” (October 2013) and UNAIDS Guidance Note on HIV and Sex
Work (2009).

 
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1. Consequences (lack thereof in international criminal law): Since international criminal law
does very little by way of actual enforcement of its criminal laws, there is little down side to
adopting expansive definitions when criminalizing sexual violence.

2. Conversely, in domestic legal systems (which are at least supposed to enforce their criminal
laws more or less of the time), the burden of enforcing broad definitions would overwhelm
the system. (Indeed, given what a poor job domestic criminal systems are doing in enforcing
even the narrowly defined versions of rape and sex trafficking “in their books”, it is easy to
see why there is no political will to expand those crimes to match the breadth of the
international definitions.)

3. The aspirational nature of international criminal law, as a branch of international human

rights law. As Cherif Bassiouni puts it, the point of international criminal law is “to
complete the transformation from a culture of impunity to a culture of accountability.” With
such lofty goals in view, it is understandable that international criminal law definitions
would be more ambitious in scope than their domestic counterparts.65

4. The more expansive approach to criminalizing sexual violence in international criminal law
may be due to the fact that international criminal law is growing up in a different, more
progressive, era – and thus is not saddled with the conservative history of domestic criminal
legal systems.

5. Finally, at least with respect to rape, it may be that a broader (coercion-based) definition
makes perfect sense in international criminal law, given that rape functions there as a
predicate to crimes that presuppose conditions in which consent would be invalid.66 In such
a context, demanding proof of non-consent seems out of place.67

                                                                                                               
65
Comparatively, the function of domestic criminal law (its ultima ratio) suggests a somewhat narrower, less
aspirational, focus: to serve as a “necessary last resort (or backstop) to the whole project of living together
with others under law.” Malcolm Thornburn, Constitutionalism and the Limits of the Criminal Law, in RA
Duff, et al., The Structures of Criminal Law (OUP 2011), p. 101.
66
This consideration raises the questions regarding the extent to which sexual violence in conflict bears
salient resemblances to sexual violence under “normal” conditions – and whether the coercive conditions
that presuppose the invalidity of consent might exist under some peacetime conditions as well. (See, Fionola
Ni Aoláin, et al. On the Frontlines: Gender, War, and the Post-Conflict Process (2011), pp. 45-49.)
67
Inquiring into whether the victims consented to the sexual intrusion and penetrations suggests something
almost as ridiculous “as if the Interahamwe might have been going on a date with the Tutsi women they
hunted down and slaughtered with marchetes.” MacKinnon, n 47, p. 243.

 
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