When news broke that DNA evidence confirmed Josef Fritzl as the biological father of his daughter’s children, his defence counsel reportedly argued that while the test proved incest, separate evidence would still be needed for rape and enslavement. That framing – common in adversarial trials – exposes a stubborn and harmful misconception: that the central question in rape cases is whether a sexual act occurred. It is not. The central question is whether the act occurred without consent.

 

What DNA Can (and Cannot) Tell Us

DNA can establish sexual contact. It cannot tell us whether that contact was freely agreed to. Because rape is defined in most jurisdictions as sexual penetration without consent (often coupled with knowledge or recklessness about that lack of consent), the decisive issue is the presence or absence of freely given, informed, and reversible agreement. Evidence that a sexual act occurred answers only step one; the law’s moral and legal gravity rests on step two.

 

Why Consent Is the Right Legal Focus

Rape law is about choice. DNA may confirm contact; it cannot confer consent. Any courtroom strategy that obscures that truth doesn’t merely defend a client – it undermines the rule of law and the dignity of those the law exists to protect.

Here are some of the things to keep in mind when analysing the aftermath of rape.

  • Harm and wrongdoing: The wrong in rape is the violation of a person’s autonomy and bodily integrity. That wrong exists even if there is no injury visible to the eye or medical camera.
  • Reality of coercion: Coercion, confinement, intimidation, or abuse of power can nullify any appearance of acquiescence. People survive by complying; compliance is not consent.
  • Trauma and memory: Trauma can fragment recall, delay reporting, and shape survivor behaviour in ways jurors may misread. Focusing on consent over “perfect victim” myths helps fact-finders evaluate what matters: choice, power, and constraints.
  • Evidentiary fit: The consent inquiry properly channels relevant proof – context, threats, isolation, grooming, patterns of control—rather than overvaluing biological traces that are silent on voluntariness.

 

Evidence That Speaks to Consent

Courts and investigators should be explicit that the consent question invites a broader, trauma-informed evidentiary picture:
  • Contextual evidence: confinement, surveillance, withheld resources, threats, or manipulation.
  • Behavioural evidence: attempts to escape, compliance under duress, and delayed disclosure patterns consistent with coercion.
  • Corroboration beyond biology: communications, witnesses to control or injuries, diaries, medical and psychological evaluations.
  • Expert testimony: to explain the dynamics of coercive control, trauma responses, and why “no resistance” is not proof of consent.

 

How Defence Strategies Exploit Misconceptions

Some defence approaches lean on the lay intuition that “sex = consent unless proven otherwise,” inviting jurors to confuse the existence of a sexual act with legality or mutuality. Others insinuate that the absence of overt violence equals permission, or that delayed reporting undermines credibility.

These tactics don’t just litigate aggressively; they misdirect the legal analysis away from autonomy and toward caricatures of victim behaviour.

 

A Necessary Condemnation of Such Lawyering

Criminal defence is vital, and everyone is entitled to a robust defence. But there is a principled line between challenging the prosecution’s case and trading in myths that erase consent. When lawyers argue – implicitly or explicitly – that proof of sex without more defeats rape, they traffic in ignorance that endangers victims, chills reporting, and distorts juror judgment.
Courts should not tolerate rhetoric that:
  • Equates lack of visible injury with consent.
  • Suggests compliance under captivity or threat is voluntary.
  • Treats delayed disclosure or trauma-shaped memory as inherent falsity.
Judges can and should curb such arguments through evidentiary rulings, accurate jury instructions on consent, and sanctions for misleading statements that misstate the law.

 

Raising the Bar: Policy and Practice

We need change, and it has to be systemic. Here are some of the immediate issues that need addressing – from lawmakers to the judiciary:
  • Clear statutory definitions: Codify affirmative, freely given consent and recognise coercive control as vitiating consent.
  • Jury instructions: State plainly that the issue is voluntariness, not merely whether a sexual act occurred.
  • Training: Equip police, prosecutors, defence counsel, and judges with trauma-informed practices that separate myth from evidence.
  • Support for survivors: Independent advocates, protective measures in court, and options to present context safely.

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