I would like to discuss an excerpt from a law review article about the “gender gap” with respect to reasonable interpreations of consent, and contrast this with another excerpt from a Sociology Journal article. But first, a crash course in Criminal Law.

In order to be found guilty of a criminal offense, you have to satisfy what is known as the “Mens Rea” with respect to each element of the crime. Mens Rea = guilty mind. Essentially, there are four types of Mens Rea:

1. Intent- purpose to cause the harm

2. Knowledge- knowing with certainty that an action will result in harm

3. Recklessness- taking an action which poses an extreme risk to other people

4. Negligence- taking an action that poses a less-than-extreme risk, but which a reasonable person would not have taken under the circumstances.

Turning now to Rape Law, most Rape statutes have a Force element, a Consent element, and a “sexual action” element. So a standard Rape statute might read like this:

Any person who forcibly engages in vaginal, oral or anal intercourse with another person, without that person’s consent, is guilty of the crime of rape.

Now here is the question: What, if any Mens Rea is required with respect to the consent element of the statute above? In other words, must the person engaging in sexual behavior know that the person has refused consent in order to be found guilty? Or can the person be found guilty of rape without any knowledge of the person’s non-consent?

For example: what if a person does not ever expressly consent, but gives no external manifestation of their non-consent, verbal or physical, such that a reasonable person under the circumstances would believe that consent was given? Is this a defense to the charge of rape? And if so, where does the definition of “reasonable” come from?

having said this, I would like to first lead everyone’s attention to the comments of Robin D. Weiner, from her Law Review Article Shifting the Burden: A Meaningful Consent Standard In Rape, (6 Harv. Women’s L.J. 143, 147-149 (1983)):

[A] gender gap in sexual communication exists…Because both men and women are socialized to accept coercive sexuality as the norm in sexual behavior, men often see extreme forms of this aggressive behavior as seduction, rather than rape…Miscommunication of this sort may create a situation where submission would be reasonable behavior for a woman but would not indicate voluntary consent. A woman may believe she has communicated her unwillingness to have sex– and other women would agree, thus making it a “reasonable” female expression. Her male partner might still believe she is willing– and other men would agree with his interpretation, thus making it a “reasonable” male interpretation. The woman, who believes that she has conveyed her lack of consent, may interpret the man’s persistence as an indication that he does not care if she objects and plans to have sex despite her lack of consent. She may then feel frightened by the man’s persistence, and may submit against her will.

I would like to juxtaposition this analysis with the the results of a survey conducted by Charlene L. Muehlenhard & Lisa C. Hollbaugh, “Do Women Sometimes Say No When They Mean Yes? (54 J. Personality & Soc. Psych. 872, 874-878 (1988)) regarding the attitudes of college-age women with respect to the way they interact with men in the context of courting:

In one survey of women’s undergraduates, 39 percent reported that they had said no when they meant yes, and 61 percent of the sexually experienced women in the survey said that they had done so. Ninety percent of these women said that fear of appearing promiscuous was an important reason for their behavior. Many said that they wanted their dates to wait, or "talk me into it.” And some said that they told their dates no because they “wanted him to be more physically aggressive.

The authors of the study above concluded, "that this pattern of communication, though rational for some women, can teach men to disregard women’s refusals and thereby increase the incidence of rape.”

The juxtaposition of these two excerpts represents a status quo that causes tons of problems for the criminal justice system. It also makes it much more difficult to adopt a desirable “no means no” standard when it comes to the culpability of people accused of the crime of Rape. Based on the results of the survey above, how do you adopt a “no means no” standard with respect to Mens Rea for the consent element of rape statutes when that behavior might actually be reasonably interpreted as consent rather than non-consent? Wouldn’t doing so possibly make rapists out of men exhibiting otherwise reasonable, and perhaps even desired behavior? Should rape statutes then require an affirmative external manifestation of non-consent beyond simply saying “no” in order to account for this?

The problem here is that there’s no clean line to be drawn. The nature of Criminal Statutes is that no matter where you draw the line, you will inevitably have people who end up on the wrong side of it. Rape statutes that are zealously “victim friendly” will inevitably make Rapists out of men whose behavior is not what we would normally consider Rape. Whereas Statutes that require an encumbering number of elements to be proven beyond a reasonable doubt in court will likely result in people being found not guilty whose behavior we consider worth punishing.

We also need to be mindful of the ease with which an overly “victim friendly” statute may be conducive to wrongful convictions and/or false rape charges. The Hofstra and Duke cases are good examples, and I know someone personally who has gone through it; it was undoubtedly the most emotionally draining period of his life, despite the fact that there was absolutely zero case against him. It was made all the worse by the fact that many of his female acquaintances immediately abandoned him in shock, because the accusation was enough to brand him a Rapist. Thankfully his accuser eventually retracted her claims, but not before his reputation had been destroyed, was abandoned by many friends, and spending thousands of dollars on legal representation to help him get through the ordeal.

Yet I am not blind to the insidious damage that rape can cause to a victim. My study of victims’ accounts has led me to believe that the emotional damage done by rape is actually much worse than the physical damage. I have experienced this most vividly in the account of Bill Zeller, who was not a rape victim in the traditional sense discussed above, but rather of child-hood incest: he was repeatedly and chronically raped as a child by an older family member who he trusted. The nature of the damage done to a child raped by an adult is no doubt different in some ways from that of 2 similar-aged individuals; but the psychic wounds resulting from a violation of trust and sexual autonomy are no doubt shared on some level. It is telling that the damage to Zeller’s psyche prevented him from ever being able to have a meaningful relationship, similar to conventional rape victims. The damage of these events eventually led him to kill himself. His suicide note is one of the most soul-shaking things I’ve ever read.

No one can reasonably question the emotional toll that rape takes on its victims. Yet in order for the Criminal Justice System to work, it must presume that someone who is accused of a crime is innocent until proven guilty beyond a reasonable doubt. And therefore we must balance the need to punish those who would intentionally visit such harm on other people, with the need to protect people who have genuinely committed no crime. Unfortunately, human experience gets in the way, and it is categorically impossible to craft a criminal statute will ever catch only the villains, and leave behind the virtuous. So we are stuck trying to perfect it the best we can. And I lose sleep over it every night.