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.
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 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.
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.
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.
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.