On the element of consent in rape
The problem highlighted by Iulia Neagu’s recent column on rape is, “What happens when both parties are very drunk?” By “very drunk,” I do not mean merely tipsy — I mean “mentally incapacitated,” which is the legal terminology usually found in sexual assault statutes.
Until the second half of the 20th century, men could not legally be raped. Only women could be considered victims of rape at law, and never in the context of marriage. Sir William Blackstone, an authoritative jurist in the common-law tradition, defined rape as “carnal knowledge of a woman forcibly and against her will.” This definition prevailed in most American states — whose laws still differ subtly on this subject — virtually unaltered until the second half of the 20th century.
Under the influence of societal change — particularly the perception that a man who gets a woman very drunk for sexual purposes has used the moral equivalent of physical force — the “forcibly” part of the definition was gradually understood with greater latitude until its necessity to establish the actus reus (the specific deed of the crime) was almost completely negated. The central note in the definition of rape in American law is now “against one’s will.” Around the same time, the law started to distinguish between consensual and non-consensual homosexual activities, allowing for the possibility of charging homosexual rape. These shifts helped to shape a genderless understanding of the crime. Today, if a sexual partner cannot give legal consent — as when a person is drunk to the point of mental incapacity — then he or she has been raped, in the eyes of the law.
This much-broader definition of rape raised serious new difficulties, problems highlighted in Neagu’s piece, though misunderstood in that article. It is certainly not the case that any person who gets drunk thereby assumes legal liability for everything that happens to him or her. But Neagu does raise a tricky issue: What happens when a guy and a girl are at a party, they flirt, get “very drunk,” go home and have sex. Neither of them was legally capable of consent. Was there rape? And who raped whom?
The first question is simple to answer from the perspective of current American law: Rape exists whenever either party was incapable of giving consent. But what if neither party regrets the encounter? Or what if they both regret the sex but choose to forget the subject entirely?
Under American law, rape is a criminal matter: It is an offense against the people and is prosecuted by district attorneys, and victims can be legally summoned to appear in court to testify that they were raped. Whenever notice of rape reaches a district attorney or police officer, the state can decide, unilaterally, to prosecute. The victim can be compelled to testify under threat of subpoena, even if the victim doesn’t think any rape occurred. So this situation is, at law, a crime. But of course, if both parties choose to forget the subject, nobody will ever know.
As to who raped whom: This is much more complicated. There are 50 different answers, one for each American state. Some crimes require both actus reus (the deed) and mens rea (“guilty mind”). Mens rea requirements for rape differ by jurisdiction. In some states, rape is a crime of strict liability, and the non-consensual sex itself is sufficient to establish rape. So in some states — as Katie Rodriguez ’11, Avital Ludomirsky ’11, Amanda Yamasaki ’11 and Jillian Hewitt ’11 said in their response column to Neagu — whoever initiates the sex — guy or girl –— is responsible for the rape. But besides these strict-liability jurisdictions, some American states also require intent to commit sex with knowledge that the conditions for rape existed: So, in theory, a very drunk person could mount a legal defense that he or she did not realize that the other party was also too drunk to give legal consent. This could be grounds for acquittal.
The obvious problem with this latter account is that it allows a defendant to use inebriation to negate an element of the offense. It remains, nonetheless, the present state of the law in some American jurisdictions. For my own part, if the two parties were both so thoroughly drunk that they cannot recall clearly who initiated the sex, then I would observe that we have reasonable doubt as to who raped whom. The defendant is entitled to presumption of innocence, so in the presence of such doubt I would vote to acquit – regardless of the gender of the defendant.
In conclusion, I must take serious issue with two points raised by Rodriguez et al. in their column. First, they make the potentially dangerous claim that “it is imperative to believe someone who reports a sexual assault.” Empathy is, of course, necessary for those who claim to have survived sexual assault, and in our personal capacities belief may well be the best course of action. But in our potential role as jurors, we are called to acquit when the evidence is unclear. Second, at least one statistic that they cite is incorrect: The best data suggest that approximately 8–10 percent of rape charges are false, not 2–3 percent, as they claim. Further information can be found in the thorough study of Philip Rumney, available in the March 2006 edition of The Cambridge Law Journal. Especially with these numbers in mind, we would do well to consider the particular evidence carefully in any individual case of rape.
Brendan Carroll is a philosophy major from New York, N.Y. He can be reached at firstname.lastname@example.org.