How to Criminalize Rape? The Use of Offense Construction Principles in Relation to the Criminal Provision of Rape

Abstract This Article explores how rape is criminalized through the design of criminal provisions, with particular attention to offense-construction principles. While criminalization theory typically asks whether conduct should be criminalized, this study examines the equally important question of how a criminal provision should be structured. Using a comparative legal and empirical analysis of legislative materials from Belgium, Germany, the Netherlands, and Sweden, the article identifies the principles that guide legislators in shaping the prohibition, legal classification, and sanction of rape. The analysis shows that legality, coherence, internal subsidiarity, effectiveness, guilt, retrospective proportionality, and legitimating principles such as harm, wrong, and legal interest play central roles, though their relative importance differs across jurisdictions. The actus reus receives the most detailed legislative attention, especially where consent-based models replace coercive ones. The study also finds that explanatory memoranda are most effective when principles are used in combination rather than in isolation. Overall, the article argues that offense-construction principles can improve the clarity, accessibility, and internal consistency of rape legislation, while also ensuring that legal labels and penalties better reflect the seriousness of the offense.