Why We Need a Feminist Abolitionist Approach to Underage Rape
Marina S. Sáenz (European University Institute)
This post offers an overview of arguments developed in my ongoing doctoral research at the European University Institute.
§1 Underage rape and the crisis of “competing vulnerabilities”
Cases of rape perpetrated by minors present criminal jurisprudence with a fundamental dilemma: how to carry out justice when the subject who has caused harm and the subject who has suffered it are both, albeit differently, inscribed within the same structural nexus of vulnerability.
In my doctoral research, I focus on underage male rape offences by children who, in their respective jurisdictions, are below the statutory minimum age of criminal responsibility (MACR). With this legal status, the child is legally constructed as non-imputable and is thereby insulated from the ordinary mechanisms of criminal liability. At the same time, the survivor (a girl or woman) is constructed as a paradigmatic rights-bearing subject whose sexual autonomy and bodily integrity count as protected legal interests in the architecture of rape law. The legal framework is thus simultaneously tasked with precluding the premature criminalisation of the child and with affording institutional recognition commensurate with the gravity of the sexual harm suffered by the survivor.
Existing institutional and doctrinal responses tend to resolve this constitutive tension by stabilising one commitment at the expense of the other. When the child’s protection is foregrounded, the case is absorbed into rehabilitative or welfare pathways; the survivor’s claim to formal recognition and redress is displaced into therapeutic or private registers. Conversely, when the emphasis pivots to the survivor, criminal law and exclusionary measures are foregrounded; the minor is functionally refigured as a quasi-adult offender, and his own structural vulnerability is conceptually erased. In both cases, protection is structurally configured as a scarce good to be conferred unilaterally rather than as a systemic responsibility owed to both parties.
I describe this structural configuration as a regime of competing vulnerabilities. In my broader research, I treat this as a diagnostic starting point rather than a normative solution: it marks the limits of prevailing responses and motivates a turn to feminist abolitionism. The remainder of this post sketches why, in my view, a feminist abolitionist lens is indispensable if we are to move beyond this zero-sum framing of justice in cases of underage rape offences.
§2 The false binaries of feminist legal theory
To move beyond the regime of competing vulnerabilities, my intervention has to begin with an internal critique: it must demonstrate, from within, the limits of the existing feminist legal canon when it is applied to cases involving underage offenders and sexual violence.
This is not a project of dividing feminist legal thought into “good” and “bad” strands, nor could such a division do justice to the breadth and internal diversity of feminist legal struggle. Much of what currently exists in rape law is the direct and indispensable outcome of sustained feminist work in that domain. My analysis takes these achievements as its starting point, but argues that the dominant frameworks in which those gains are situated prove to be markedly inadequate in cases where the perpetrator is a child below MACR.
The difficulty is structural. The conceptual threshold of non-imputability renders these frameworks unable, in this context, to hold accountability and care together. For present purposes, I refer to two recurrent institutional logics that crystallise around feminist engagements with criminal law: a carceral model and a non-carceral or restorative model. These are heuristic labels for dominant tendencies in law and policy, not exhaustive descriptions of feminist legal thought.
§2.1 The carceral limit: the double deficit
Carceral feminist strategies emerged as a necessary response to criminal law’s historic indifference to rape, forcing states to recognise sexual violence as a public wrong. However, the horizon of reform this model can accommodate—its equation of justice with penal modernisation (more prosecutions, longer sentences)—limits its applicability when the perpetrator is a child below MACR.
In this context, the carceral framework produces what I think of as a double deficit. First, it “adultifies” the child, treating him as a delayed or incomplete version of the standard perpetrator and obscuring how structural forces (patriarchy, race, class, welfare neglect, school exclusion) configure his vulnerability. Second, and crucially, it leaves the survivor with a radically narrowed vocabulary for justice. Because recognition is tethered to the trajectory of a criminal case, once prosecution is barred by non-imputability, the survivor’s claim to justice is effectively suspended.
§2.2 The non-carceral limit
Non-carceral or restorative approaches often appear, at first glance, as the obvious corrective to carceral excess. They foreground repair, rehabilitation and community rather than punishment, and they have been crucial in exposing the harms of criminal justice institutions. Yet in the context of rape by minors below MACR, they reveal a different kind of limit. However structurally attuned their diagnoses may be, the solutions they offer frequently revert to an individualised paradigm: juvenile sexual violence is treated as a problem of the child’s conduct, the family’s dynamics, or a breakdown in communication, rather than as the expression of a wider architecture of structural harm.
In this register, justice is reimagined as a series of community-based or therapeutic interventions. The work of “accountability” is displaced onto survivors and their immediate environment, while the structural conditions that produced both victimisation and offence are left intact. In settings characterised by entrenched hierarchies, these processes can easily stabilise, rather than unsettle, patriarchal norms. A model that relies on such mechanisms, without simultaneously transforming the systems that render underage offences thinkable in the first place, risks functioning less as an alternative to structural violence and more as one of its techniques of management.
§3 What feminist abolitionism offers
Feminist abolitionism, as I understand and work with it, begins from a different set of questions. Rather than asking how severely we should punish individual offenders, or how best to manage their rehabilitation, it asks what social, economic and institutional arrangements make certain forms of violence likely in the first place, and how those arrangements might be transformed.
In this sense, feminist abolitionism is not simply “anti-prison”. It builds on Black feminist and abolitionist thought to interrogate how carceral institutions, welfare systems and everyday infrastructures organise vulnerability and disposability along gendered and racialised lines. Crucially, it does so without losing sight of the specificity of sexual violence or the need for meaningful forms of accountability to survivors.
Applied to underage rape offences, a feminist abolitionist lens pushes us to do at least three things at once:
- Refuse the isolation of the child as a self-contained wrongdoer, and instead ask how schools, welfare agencies, housing regimes and migration policies shape his trajectory into and through the legal system.
- Refuse the isolation of the survivor as a purely individual victim, and instead situate her exposure to harm within broader patterns of gendered and racialised precarity.
- Refuse the zero-sum logic that pits the child’s vulnerability against the survivor’s, and instead treat both as differently positioned within a shared, and transformable, institutional landscape.
My research develops a more detailed feminist abolitionist account of underage rape offences that builds on these intuitions. Here, I simply want to suggest that such a lens makes it possible to see the relationship between offender and survivor not as a clash of competing vulnerabilities, but as something more complex.
§4 A brief glimpse: entanglement and time
One way of capturing this complexity is to think in terms of entangled vulnerabilities rather than competing ones. The underage offender and the female survivor often move through the same institutional fields (patriarchal societies, precarious housing, exclusionary schooling, racialised policing, under-resourced care systems) but along differently routed paths. Their vulnerabilities are not equivalent, but they are not independent either; they are produced in relation to one another within the same architectures of neglect and control.
Another, related aspect of legal offence that contributes to this complexity, I argue, is the temporal dimension of justice. Criminal law tends to operate in what I describe as a crisis temporality: harm is treated as a punctual event, to be answered by a punctual intervention. Feminist abolitionist thinking invites a different temporal imagination, one that sees justice less as a single decision and more as an ongoing, infrastructural labour: re-organising the conditions in which children grow up, and the conditions in which survivors live after harm.
My research develops these intuitions in greater depth. For the purposes of this post, it is enough to signal that a feminist abolitionist approach to underage rape offence is not merely about taking a position on punishment. It is about re-situating both the child and the survivor within the institutional architectures that shaped their encounter, and about thinking seriously about how those architectures might be altered.
§5 Closing remarks
Cases of rape committed by minors, especially those below the MACR, are often treated as hard cases at the margins of ordinary criminal justice. In my view, they belong at the centre of our thinking. They expose the limits of carceral and non-carceral feminisms alike; they reveal how quickly the vulnerability of children can be pitted against the vulnerability of women; and they illuminate the structural organisation of harm in contemporary welfare-penal arrangements.
Feminist abolitionism does not offer a ready-made institutional blueprint. What it offers, instead, is a way of naming and analysing what is already happening, and of asking different questions about it. If we are serious about justice in cases of underage rape offence, we cannot afford to keep treating these cases as anomalies. Nor, I would argue, can we retain the current limits of legal imagination, in which the only real choice is between incarceration and privatised, often unequal, forms of restoration.
The broader dissertation that serves as the basis for this blog post develops these ideas with greater doctrinal and theoretical depth, focusing on the intersection of underage rape offence, feminist abolitionism, and human rights. My aim here has simply been to indicate why a feminist abolitionist lens is, I believe, indispensable for re-imagining what justice could be when both the child and the survivor are vulnerable, and the law is asked to choose between them.