In comments to my post on “birth rape,” more than one person expressed surprise and shock that a feminist would say that intent matters in the definition of rape. This is a really complicated issue, and I’ve been reading about it on and off for nearly two years without fully understanding the nuances. I’m not a lawyer, and my (layperson’s) understanding of the issue is still evolving. I’ll be grateful for any input from people who know more about the law than I do.
With those caveats in mind, I would argue strongly that the motivations and awareness of someone who commits sexual assault do matter. Taking this position doesn’t amount to rape apologism. A perpetrator’s motivations matter for feminist reasons: as the example of “birth rape” shows, the possible remedies, penalties, and prevention strategies are different for rape than for other violations of bodily autonomy and integrity. They also matter for reasons of fairness: In the Anglo-American tradition, criminal law generally imposes different penalties depending on the moral culpability of the defendant.
First, let’s bear in mind that rape is not the same as sexual assault. Rape is one form of sexual assault – the most serious. Some states don’t use the term “rape” in their criminal code any more, preferring instead to designate various degrees of sexual assault. I’ve previously written about some of the various forms of sexual assault that the law recognizes. Having a spectrum of offenses is very important because even if a sexual assault doesn’t rise to the standard of “rape,” the law can – and in my view, should – provide additional recourse to a victim.
Generally speaking, in order to prove rape (or first degree sexual assault), the prosecution has to prove two things: that a crime occurred (or actus reas) and that the defendant committed it with a “guilty mind” (or mens rea). The principle of mens rea runs throughout our criminal code. It is especially important when it comes to the most serious crime. The most familiar example is homicide, where distinctions exist between first-degree murder (which is premeditated), second-degree murder (purposeful but not planned in advance), and quite a wide a variety of other forms of homicide and manslaughter, depending on how the killing occurred and how negligently or intentionally the killer acted. (Exact categories and definitions vary from state to state.) Without mens rea, all forms of killing would be considered equally culpable and equally blameworthy, and they’d be punished with roughly equal severity.
Mens rea is relevant to sexual assault law in most states in the U.S., though the standards vary from state to state, and they often aren’t specified very clearly. (Here’s an overview – it’s a Word file. Subsequent references to state laws rely on this chart unless otherwise noted.) Because of this fuzziness, it’s helpful to look at the American Law Institute Model Penal Code (MPC). The MPC isn’t binding on the various states, but it has been highly influential. The MPC delineates four levels of culpability, which I’d summarize as follows (exact wording is at the end of this post):
- Purposeful: The defendant intended to commit the crime and harm a specific victim.
- Knowing: The defendant might not have intended to harm the victim, but he/she had knowledge that such harm was certain or virtually certain.
- Reckless: The defendant knew the odds were high that his/her actions would harm the victim.
- Negligent: The defendant was not aware that he/she was likely to harm the victim, but he/she should have been realized it. (Note that the standards for negligence are higher for criminal cases than in civil court.)
As it turns out, state law is typically sloppy about specifying the mens rea required for a rape conviction. Often it’s just a matter of “general intent.” This leaves the door open for case law to further specify the mens rea needed to convict. On the whole, recklessness or worse is required. The MPC calls for recklessness at a minimum. (For an overview of this messy situation as of 2000, see David P. Dryden, “Redefining Rape” – full text and citation in this pdf. It runs to 163 pages, and I’m still trying to digest it.)
Here’s where things get sticky for feminists concerned with rape and other forms of sexual assault. Defendants exploit the mens rea requirement by arguing that they made an “honest mistake” and believed consent was given. This defense usually flies if the mistake is judged honest and also reasonable, though again jurisdictions vary, with some considering even unreasonable mistakes to be exculpatory.
Given that the mens rea requirement allows some rapists to game the system, shouldn’t a feminist just demand its abolition? For instance, statutory rape is typically a “strict liability” crime, which means if a defendant has sex with a very young person. In my state of Ohio, this applies when the victim is under 13, “whether or not the offender knows the age of the other person,” without any verbiage about reasonableness, recklessness, or negligence. The perpetrator can be found guilty of rape without any other consideration of his or her culpability. (In practice, though, most such cases in Ohio are prosecuted as a lesser offense, gross sexual imposition.)
However, I’m reluctant to abandon the basic principle of blameworthiness. Statutory rape is already a pretty extreme outlier. To the best of my knowledge, there’s no other equally serious crime that relies on strict liability. If we made all sexual assaults strict liability, how could we oppose the injustice of, say, a profoundly mentally retarded individual being convicted of rape and imprisoned for years on end? To me, it seems immoral to incarcerate people who are not in a position to recognize their own moral culpability. In case you don’t care for this argument: Wouldn’t juries be even less likely to convict if the law failed to distinguish degrees of blameworthiness?
Instead, I’d rather consider how we might redefine “reasonable” beliefs in consent. For instance, Catherine MacKinnon has advocated replacing a “reasonable man/person” standard with a “reasonable woman” one – an approach with both promise and problems, which I’m still weighing. Or we might introduce a category of sexual assault based on criminal negligence to ensure consent, which would carry substantially lower penalties than rape, but would offer a chance of conviction in acquaintance rape cases, which remain very difficult to prosecute. This isn’t unheard of; Ohio’s criminal code defines forcible rape as committed “purposely,” but the bar for sexual battery is only “knowingly.” Why not create a lower category of sexual assault that specifically addresses instances of recklessness and criminal negligence? I’m still thinking and learning about the possibilities, so I’m reluctant to commit to any particular legal model. (Maybe in a future post?) But given that the rules of evidence have already been changed substantially (e.g., rape shield laws) without much changing conviction rates for acquaintance rape, I think it’s crucial to consider other areas for potential reform.
Finally, I know some readers are wondering – as Melissa did in comments: Shouldn’t feminists have a definition of “rape” geared to women’s experiences? Well, only in some ways. Surely our desires for reform ought to be anchored in the experiences of victims (who, as feminists are increasingly realizing, are not always women). There are abusive situations that are currently legal, yet we may well want to see punished by law. If so, we should clarify our positions and work toward changing the law. We also need to continue criticizing the rape myths that allow juries to buy an “honest mistake” defense that’s obviously founded on misogyny. Laws need to change so that the typical defense doesn’t rely mainly on those myths. Rape myths negate women’s experiences and they prejudice juries against complainants.
On the other hand, we should not embrace a “social” or “psychological” definition of rape that’s disconnected from both the current law and the law as we’d like to see it. Rape is always irreducibly a legal category – a crime. I’m not willing to say, “Well, it’s up to every person to define for him- or herself whether an experience was rape.” In the feminist blogosphere, some folks are branding anything short of enthusiastic consent as rape. (That, too, would be another post.) Enthusiastic consent is a great cultural standard. I teach it, especially to beginning students, because I think it offers a chance to make real inroads against acquaintance rape. It is not embedded in the law, and I’m skeptical that it ever ought to be. As I’ve argued before, there are areas of sexual behavior where ethics are more appropriate than legal remedies. Frankly, just a cursory look at existing law shows that many states still retain a requirement to prove force (or the dire threat thereof), and some still require resistance.
There’s plenty of work to do. The most important reforms don’t require that we abolish “intent” – or mens rea – as a meaningful category. In fact, if we attend to mens rea, we can probably increase conviction rates, but more importantly, I think we can teach and write against rape more effectively than if we bracket out a perpetrator’s state of mind.
Appendix: Mens rea as defined by the Model Penal Code
2.02 General Requirements of Culpability.
(1) Minimum Requirements of Culpability. Except as provided in Section 2.05, a person is not guilty of an offense unless he acted purposely, knowingly, recklessly or negligently, as the law may require, with respect to each material element of the offense.
(2) Kinds of Culpability Defined.
(a) Purposely.
A person acts purposely with respect to a material element of an offense when:
(i) if the element involves the nature of his conduct or a result thereof, it is his conscious object to engage in conduct of that nature or to cause such a result; and
(ii) if the element involves the attendant circumstances, he is aware of the existence of such circumstances or he believes or hopes that they exist.
(b) Knowingly.
A person acts knowingly with respect to a material element of an offense when:
(i) if the element involves the nature of his conduct or the attendant circumstances, he is aware that his conduct is of that nature or that such circumstances exist; and
(ii) if the element involves a result of his conduct, he is aware that it is practically certain that his conduct will cause such a result.
(c) Recklessly.
A person acts recklessly with respect to a material element of an offense when he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that, considering the nature and purpose of the actor’s conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a law-abiding person would observe in the actor’s situation.
(d) Negligently.
A person acts negligently with respect to a material element of an offense when he should be aware of a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that the actor’s failure to perceive it, considering the nature and purpose of his conduct and the circumstances known to him, involves a gross deviation from the standard of care that a reasonable person would observe in the actor’s situation.
Patron cat of Kittywampus (1985-2001)
I’m an atheist, but I was raised Christian (Lutheran). One of the things I was taught was that all you had to do was believe and repent, and you would be saved. But if you did not believe, you would end up in hell.
Thus one of the things I remember struggling with was the idea that people who had simply never heard of Christ would go to hell. I mean, how are you supposed to hold people accountable for things that they are unaware of? At least to such a harsh degree? To do so seems unethical in itself to me.
And I see a lot of the “intent doesn’t matter!” rhetoric surrounding sexual harassment, assault, etc. to be a very similar sort of thing. Human communication is a very fickle and error-prone sort of thing. And what seems obvious to one person, can be completely non-obvious to another. Even as a guy this has happened to me, where female partners don’t realize my signals mean “stop” or “no” and they keep going. I’m hardly going to hold them accountable to the same degree as someone who knows I want to stop and keeps going anyway. The idea is absurd.
This is also brings to mind something one of my art professors told us about knowledge and learning. Learning comes in 4 phases:
1. Not knowing that you don’t know.
2. Knowing that you don’t know.
3. Knowing that you know.
4. Not knowing that you know.
The first stage is one that I think some people like to pretend doesn’t exist (outside of themselves, anyway), and they prefer to think that everyone is automagically at stage 2. But it’s an extremely important stage to acknowledge. It’s a stage where you aren’t even aware there is a gap in your knowledge. And you can’t be expected to seek out or act upon knowledge that you don’t even know exists.
This is very abstract, of course. But I think it plays an important part of some of what you’re talking about in the OP. If it doesn’t even occur to you, for example, that your partner might not be consenting (due to differing nonverbal communication, for example, or other factors) I find it difficult to hold you highly accountable. Same as with the women that did not stop when I signaled: I’m pretty sure they didn’t know that they didn’t know.
Thanks so much for your very thoughtful reply. I’ve been working on this topic for so long, and I would’ve hated dead silence (which is a danger in overly lengthy, highly abstract, legalistic posts!).
I really appreciate the hierarchy that your prof explained. I guess I’d add 5) forgetting most of what you’ve ever learned!
But seriously. As men and women become better educated on rape myths, we might be able to introduce a negligence standard that would correspond to what a “reasonable man” could be expected to understand.
Also, most of us are not good at communicating our sexual wishes. Many of us have a hard time verbalizing them. Hence our reliance on nonverbal signals, which is almost certainly an overreliance for most of us, esp. when we’re with a new partner. When I talk to my students about their sex ed experiences, they almost never report having discussed pleasure or the nuanced of sexual communication. That’s an area where we could make genuine progress – assuming, of course, that we could get beyond “abstinence only”!
Ironically, having a *little* knowledge puts a defendant at greater risk of being judged reckless and thus convicted. If he can claim to be clueless about such basic ideas as “no means no,” he’s better protected against being found guilty.
Thanks again, Cessen.
Yes, definitely.
I cannot help but be reminded of this article by Richard Jeffrey Newman:
http://www.salon.com/travel/wlust/1999/11/19/korea/index.html
A hard-nosed position would be that he was at fault, period, and to say anything else is victim blaming. It doesn’t matter his intent, nor the context or circumstances. But IMO that’s unreasonable. And I suspect most feminists, even, would agree. (Though I could be wrong.)
And I think there are more confounding cultural norms (such as the ones Richard found in Korea) in our own society than is widely acknowledged. Maybe not quite to that extreme, and maybe in a different vane. But they are there. And they make it really hard for people to navigate sexual consent in the real world, and thus also gives many people a history of (unintentionally) doing problematic things.
And (of course) what sucks about this is twofold:
1. People get hurt.
2. Predatory, intentional rapists can hide behind them.
And in the feminist blogosphere, it’s become threefold:
3. In an attempt to minimize #2, people who are more like Richard are starting to get lumped in with people like in #2 with “intent doesn’t matter” rhetoric.
…which I think is making a lot of people rightfully defensive.
Ultimately I feel like deconstructing those confounding social norms (and educating people about rape myths is certainly a big part of that) is the only effective long-term strategy.
As a final note, I’m really fond of Alara Rogers’ comment #64 on this thread:
http://www.feministe.us/blog/archives/2010/02/24/but-women-dont-rape/
It strikes me as a pretty realistic and multi-faceted assessment of the whole consent thing.
As an addendum to my last link to the feministe comment, I should say that the comment still needs a healthy dose of the conversation we’re having here.
But still. I’ve always liked that comment.
While you both make very good points, and while I completely agree that someone who genuinely thought he either had (or didn’t actually need) consent shouldn’t be held as criminally culpable as someone who set out intending to commit rape, the idea of judging the victim’s level of violation by the perpetrator’s knowledge (or lack thereof) of rape myths really doesn’t sit well with me.
Granted, this is personal for me, since I honestly have no idea whether or not my rapist is aware that “no means no,” (well, in his case, it’s more likely that he knows “no means no,” but believes MY “no” doesn’t count or matter) so maybe I’m too personally invested in the topic to make reasonable judgments. I just feel like rape myths are so darn prevalent in our culture that a huge number of rapists may not consider themselves as such, and would never use the “R word” to refer to their transgressions. Legal standards aside, I don’t know if I can ever fully agree with diminishing the level of violation experienced by their victims by telling them they weren’t really raped unless the perp thinks so.
OK, well, apparently Melissa, Sungold and I all agree that rape with malice aforethought should be punished more severely than rape that is committed by someone merely mistaken about hir rights. I wasn’t sure if that consensus existed when I made my objection.
I agree with Sungold that a working definition of rape at least ought to reflect “the law as we’d like to see it.” I’d definitely like to expand the legal definition of rape, because the lower-level categories mentioned simply sound too mild. Perhaps Sungold’s proposed “category of sexual assault based on criminal negligence to ensure consent” could be “second-degree rape,” with “first-degree rape” being more severe.
Like Melissa, I have no intention of “judging the victim’s level of violation by the perpetrator’s knowledge (or lack thereof) of rape myths.” But I don’t think it’s a good idea to decide on the appropriateness of the word “rape” based on the victim’s level of violation. Rape is an action that takes place in the real world, but the victim’s level of violation is highly personal to the victim. After all, rape myths are bidirectional; I wouldn’t feel comfortable excusing someone who commits rape just because hir victim doesn’t believe sie was raped.
I feel like you are conflating two different things:
1. People who think they do not need consent.
2. People who due to unfortunate social norms and/or other factors thought that they did have consent.
But I think these need to be dealt with separately.
Yes, definitely on-purpose-because-I-want-to-hurt-you rape should be held to the most stringent standards of accountability.
I think #1 above is also something people should be held accountable for. Not to quite the same degree as intent-to-harm or knowingly-causing-harm, but definitely significant accountability needs to be there.
And even to some degree I feel like #2 should be held accountable (both myself and my partners I think should be accountable for our actions). But just not to anywhere near the same degree. And certainly not criminally. It’s more of a “fuck… I made a mistake, and I hurt someone I care about… and I need to learn from this” kind of thing.
Again, I feel like two things are being unnecessarily conflated: the reality of the harm and the responsibility of the person who caused it. I feel like a lot of people think these things have to be inseparably linked, but this standard doesn’t hold true in other areas of ethics, so I don’t see why it should here.
I’m reminded of the myth about the great Chicago fire, where a woman left a lantern right next to one of her cows which subsequently knocked it over, resulting in the great fire, which killed hundreds of people. I think it’s even reasonable to say that she was being negligent with her placement of the lantern so near the cow. And she was certainly the direct cause of the fire.
But despite the harm being very real, and her actions being the cause, I would hardly hold her responsible for the deaths of all those people.
This is hyperbole, of course (and as it turns out, the myth isn’t true, but it is illustrative). But the principle holds in other situations as well to varying degrees. And I’m not saying that in the case of rape or sexual assault that this principle holds so extremely as in the myth, but I think it’s important not to ignore the role it can play.
You make a lot of very good points, but the question that springs to mind is this: How can we go about not minimizing the violation of victims without the word “rape”?
By the way, I am so sorry for what you’re going through about your circumcision. (And yes, I am anti-circumcision, it’s always seemed like needless brutality to me, but after hearing your story I’m even more strongly so.) That must be terrible, and I hope you find peace with it someday.
I see your point.
I guess it’s kind of a conundrum, then, because as you point out, rape has basically become the only word strong enough to be considered appropriate to validate such feelings and what happens to cause them (which I think is also why it gets used in phrases like “birth rape”). But at the same time, it carries a lot of deeply ingrained assumptions about the actions, motives, and nature of the person who is described as having raped someone.
So I guess I feel like this is perhaps largely a language issue, then. We don’t have language to validate people’s feelings of violation without also stigmatizing those who caused those feelings as predatory and intentional. The language just doesn’t exist.
Like, for example, technically I think it’s fully appropriate to call what happened to me “medical battery”. But that also doesn’t have nearly the oomph in common language necessary to validate my feelings and what happened to me. But to call it something like “genital mutilation” (not as a comparison to FGM, but simply because I do feel mutilated) would start to stigmatize my parents as evil people.
So I guess we can either create new language to describe these situations and hope that it takes on the appropriate connotations over time as it gets used more and more, or we can expand rape beyond its laymen usage and hope that it loses some of its connotations as it gets used to describe these situations more and more.
Unfortunately, neither tactic has any guarantees of success. Especially since language (in wide usage) is a notoriously difficult thing to change on purpose.
Hrm.
Then again, maybe it’s not a language issue. I think it’s a really common thing (at least in our culture) to believe that the harm caused and the level of responsibility of the person who caused it have to be tightly linked.
Which leads to both:
1. If people don’t feel that someone can be held fully accountable, the harm they caused is minimized.
2. If the harm is undeniable, then the person is held fully accountable even when it may not be appropriate.
So maybe deconstructing this is more important than any language issue.
@Melissa:
Dunno if you are anti-circumcision or not, but if so maybe I can relate this in another way. (If not, I fear some yelling coming my way.)
I am circumcised. My parent’s circumcised me. Or more accurately they had a doctor do it.
As it turns out, on top of the inherent physical harm of circumcision, this has also caused me a great deal of very real psychological/emotional harm. And I have struggled with this for years, and still struggle with it to this day. And it is something that I’m fairly certain I’m going to struggle with for the rest of my life.
And I absolutely believe that I am totally justified in my feelings and the struggles I’m going through. Part of my genitals were removed without my consent and without need. A part that it turns out I wanted. And that’s a huge freakin’ deal. It’s an extreme violation of my body.
So that’s one side of it. The harm to me, both physical and psychological, is extremely real. And I won’t let anyone tell me otherwise.
But…
Also, my parents didn’t do it to hurt me. They were going along with the social norms of the time. It didn’t occur to them to do anything differently.
And I could go on about how it should be obvious that cutting off part of someone’s genitals (without consent or need) is just not okay. And well… it is obvious.
But when you’re immersed in a culture like that, that fact gets heavily obscured. So although I was (and from time to time still am) extremely angry (I think rage is a more appropriate word) at my parents, I still don’t think it’s appropriate to hold them accountable to anywhere near the same degree as someone who did it while knowing the harm it would cause me.
And I don’t think holding my parents less accountable in any way implies that the violation and harm done to me was any less real.
(But believe me, I do struggle even with not holding them accountable. And to this day I’m still distrustful of doctors, I hate my birthday, and stories of/seeing newborn children triggers me.)
I’m too tired to respond in the thoughtful detail that this discussion deserves – I’ve had a really long day.
I agree that there’s a conflation occurring here between harm and accountability, which is at least somewhat peculiar to rape. For instance, I think most people would agree that the example of the Chicago Fire shows negligence or recklessness, and so it wouldn’t be regarded as murder. Deliberate arson, by contrast, can result in murder charges being brought.
I’m mulling over a few possible explanations for the tendency to see rape differently than other crimes …
- We are still working against some pretty limited popular and legal ideas about what rape is, and so feminists are understandably trying to expand the definition in whatever ways we can.
- We’re trying to put the focus on the victim’s experience after millennia in which rape was defined as a crime that sullied a family’s honor and harmed a man’s interest in the chastity of his wife or daughter.
- We’re frustrated with the difficulty in achieving convictions.
Melissa, it sounds to me like your rapist might well be culpable under a criminal negligence standard, if it embraced the idea that a “reasonable man” should know by now that “no means no.” One of the striking things about the law as it currently stands is that very few states actually allow for rape or even other kinds of sexual assault in the absence of force or a very credible threat of force. “No means no” is not yet enshrined in law. But there’s truly no excuse for men to be ignorant of the importance of consent, unless they’ve spent the last 40 years living underground.
Cessen and Melissa, I’m sorry that both of you have had experiences that violated your basic rights to control your own body. I’m not sure how much it helps to hear that from a distant person via the Internet, when you would really need affirmation closer to home, and an acknowledgement of harm by those who caused it. But for what it’s worth, I wish I had some magic formula for easing your pain.
I think it also helps to understand (assuming I understand correctly) that intent in standard law isn’t so much about “subjective psychology of the perpetrator” as about what can be determined based on evidence. Meaning, for instance, that if someone says he or she planned to do it, or if they sat outside waiting and only acted against a specific individual then they can be said to have done it “purposely.” I think that’s why the suspicion of circumstantial evidence is taken so seriously — to counter the presumption that if I say I often daydream of robbing a bank and the bank gets robbed then I must have done it.
The fundamental problem with laws regarding rape for me isn’t as much the laws themselves as the ugly fact that society remains extremely ambivalent about it — fantasizing too much about it, too eager to forgive perpetrators, definitely way too skeptical about the “virtue” of the victims (which, incidentally, is why Miss Calico’s recent post is awesome almost beyond words.)
I mean yes, we can make changes that clarify the law, and that make it more difficult for juries in particular to convict the victims rather than the perpetrators. But it’s going to remain herding cats till the general level of understanding improves. Dramatically.
Incidentally I think one really good way to go about it is adding categories for recklessness and negligence. On the face of it it’s barkingly offensive to suggest one can somehow negligently rape another person. But one of the problems, I think, is that the sort of binary consideration rape is traditionally given where it’s either rape, in which case it’s a worse crime than murder(?!?), or it’s not in which case the victim’s a false accuser. And if a jury’s not unambiguously convinced of guilt then the severity of punishments is going to make them even more leery of voting to convict. So having separate degrees of crime might actually result in more overall convictions while giving the public time to digest the concept.
I ought to add that since victims are often as conflicted as the general populace, and since as we all know the majority of perpetrators are known to the victims, and since the consequences to a victim of a failed conviction are so high, creating “lesser” categories like negligence and recklessness might make it easier for more victims to come forward. (The trick being that it’s up to prosecutors, not victims, to decide what charges to press… and they tend to be biased towards heavier charges than perhaps victims might. But prosecutors can’t do anything until victims come forward… and the possibility of some< kind of conviction rather than none might encourage a lot more victims to do so.
My point here, obviously I hope, isn't to say "rape culture is so prevalent there's no point fixing the law." Instead it's just important to advance all avenues. In this case, Sungold, I think your proposals in the legal arena could help progress advance in the social arena.
figleaf
Well, my understanding of the law (also imperfect, but hopefully evolving) is that mens rea refers to the person’s subjective state of mind – but of course that creates an epistemological problem, because we can never truly, fully know another person’s intentions. So evidence is brought to shore up an argument about what the defendant’s state of mind must have been. This would include words and behavior. For instance, slipping someone a roofie would be considered evidence of “purposeful” conduct, which is why the law in Ohio (and most states) includes that under the definition of rape (or 1st degree sexual assault).
I agree that there’s a lot of public ambivalence – slut-shaming, victim-blaming, sensationalism, and just outright denial. And yet – is it really true that “no means no” is esoteric information? I’m willing to bet that over 95% of American men have heard the message, somewhere, somehow. At some point, it seems to me that the law can reasonably enforce this, and that’s where a negligence standard might come in.
I’m continuing to read about this, and at some point I hope to write a post about the promise and limits of a negligence standard. But I’ve already considered the possibility that victims might be more likely to report. It’s not just that they’d have a better chance of getting a conviction. In at least one local case that I’m aware of, the complainant vacillated publicly about filing charges, and IIRC she was very ambivalent about the chance of a really long sentence in case of conviction. Rape victims typically would like to see some sort of penalty (in my experience) but they don’t necessarily want to see someone whom they once considered a friend sent away for 20 or 50 years.
The last couple of days, I am really wishing I had training as a lawyer!
Thanks for weighing in, figleaf.
[...] other words, the law has a mens rea requirement that limits it to cases where the perpetrator is getting off on the [...]