SexLaw and Consent

Ken Lammers has an interesting series of posts on various laws governing sex, including this interesting post on consent in the U.K.  Consent is a huge issue in many sexual assault cases; and in "date rape" cases, it's the only issue.  Many states (including Illinois) require the prosecution to prove two elements of consent: 1) that the victim did not consent, and 2) that the defendant actually knew the victim didn't consent.  The first element is easy enough to prove, as all the complaining witness need say is, "I did not consent."  The second element is more difficult to prove, and is what keeps many people wrongly accused of date rape rape from being convicted.

In some jurisdictions (if memory serves me, New York and it now seems, England) the prosecution need only prove that a reasonable person in the defendant's shoes would have known that the complaining witness did not consent.  Basically, it turns a rape case into a negligence action.  In negligence states, the prosecution can more easily prove its case, since the prosecutor doesn't have to prove that the defendant intended to rape anyone.  He just has to show that the defendant acted unreasonably.  Get a jury who thinks that sex with someone after a couple of cocktails is per se unreasonable and you can see the potential problems.

The sad thing about date rape cases is this: America is sexually puritanical.  The only way many people can relax enough to have sex is after a couple of drinks.  Should people not have sex after they've had a couple of drinks?  Whether or not you've thought of it this way, in some states their sexual assault laws criminalize drinking-and-boinking.  After all, if someone falsely accused you of something in a negligence state, do you really think you could beat the charge?  In an era of mandatory registration, would you even want to fight the charge?  Any good lawyer would tell you to cop a plea to anything that would keep you off the registristry.  Anyone other than St. Thomas More would accept such a deal, his or her own wrongdoing notwithstanding.

These days, having casual, drunken sex is extremely stupid because not only does one risk getting an STD or an unplanned pregnancy, but one also faces rape potential charges.  Some parents have a double standard when setting sexual boundries for their sons and daughters.  Not me - I'll keep 'em both up in check.  After all, there are lots of people like Kristy Holden in the world.

Comments

[mythago]

It's one thing to argue that most people can give meaningful consent after a beer or two, but arguing that America is puritanical and therefore alcohol actually promotes meaningful consent is ludicrous.

It's especially an odd argument given the long history of alcohol use as a tool to eliminate consent. "Candy is dandy but liquor is quicker" and all that.

A lawyer friend of Aaron and myself once pointed out the inherent problem in proving element #2 of consent. Either you have strict liability, so that even if a reasonable person would absolutely have believed he gave consent he could be guilty if the accuser subjectively didn't consent; or you give a permanent excuse to rape to idiots and sociopaths. That is, a man who genuinely believes that a woman wearing short skirts wants sex, no matter what she tells you, did not intend to have sex with a woman against her will; he really believed she consented.

(His solution to this was to make Criminal Stupidity a felony, so that people who are not malicious but are dangerous morons be taken off the street.)

[markm]

Mythago: I suppose that's why the "intent to rape" requirement depends on a reasonable-man standard rather than a misogynist moron standard.

The fundamental problem with presuming drunkeness = inability to consent is that it's applied very unevenly. Ever hear of a woman being charged for raping a drunken man? But I have heard of two blind-drunk people having sex and the man being charged (at least under college conduct rules, if not criminal charges). This is blatant discrimination against men, under the old Puritanical theory that women don't really want sex. When radical feminists and the religious right find common ground, it's scary...

[mythago]

I suppose that's why the "intent to rape" requirement depends on a reasonable-man standard

Does it? Because then you'd get similar results, depending on whether a jury thought a "reasonable man" believed that (say) a woman wearing a miniskirt and sheer panties really wanted sex.

Ever hear of a woman being charged for raping a drunken man?

Are you complaining that D.A.s charge in a discriminatory fashion? There's nothing sex-specific about a standard that says alcohol impairs consent.

This is blatant discrimination against men

As we all learned in Crim Law I, it's actually just the odd result of two different standards: determining consent, and determining mens rea.

[Rod Templeton]

Drunken men are accountable for their actions. Drunken women are not.

Therefore, if a woman gets drunk and drives, and runs over someone, she is not accountable. If a man does it, he is.

Same thing. Do women want to be equal, or regarded as unaccountable infants?

Can't have it both ways. Or, as is seems, women can. But it isn't right.