by
Jonathan Lewy
Criminal law rests on the basis of three pillars:
- Nulla poena sine lege—no penalty without a law—is the short hand version of an aphorism ascribed to Anselm von Feuerbach, the author of the early 19th century Bavarian Penal Code. His aphorism remains the mainstay of criminal law to this very day. Retroactive punishment is an anathema. It is almost inconceivable to imagine a person indicted and sentenced for a crime that was not written in a law book somewhere, sometime before the crime was committed. Common law crimes are but extinct. Even in England, it is well accepted that the law must be known; it must be written; and it must set standards for proper behavior before the act, rather than ex post facto.
- Conviction of a crime requires proof of a criminal act and a guilty mind, or mens rea as it is known in Latin. The standard of conviction in a criminal court are supposedly strict: the guilty mind must reveal intent, recklessness or apathy. Save for the most serious actions, such as killing another person, lack of thought or negligence are insufficient for a conviction.
- A person’s guilt must be proven beyond a reasonable doubt. Punishment is serious business, so much so that Jurists often claim that “it is better that ten guilty persons escape than that one innocent suffer.” To ensure this ideal, a person is presumed innocent until proven guilty and the burden of proof rests on the shoulders of the prosecution.
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All three pillars crumble when it comes to rape, particularly date rapes. The law normally defines rape as “sexual relations with a person against that person’s will.” Some laws are more detailed, others less so. Some mention penises, vaginas and anuses, and others do not. In some jurisdictions, only women can be raped, in others men can be victims as well. Be that as it may, the fulcrum of all rape laws is consent, or the lack thereof.
In a court of law, the question how consent is proven must be answered. If the rape is violent, forensic evidence and common sense usually prevail. Resistance, bruises, and other marks can be used as proof for lack of consent. This simple picture is blurred when it comes to date rapes, when no physical evidence is available and all that remains are the testimonies of the defendant and his accuser. Perhaps supporting evidence and witnesses who were not privy to the act are also available, but rarely are they sufficient to prove lack of consent.
Suppose a man has sex with a woman without using force. She changes her mind after the fact. She might claim that the reasons leading to intercourse were not true expressions of her free will: the man was her boss, teacher or therapist and she felt compelled to do the deed; the man claimed he was a successful businessman when in fact he is a penniless pauper; she felt threatened even though no threat was expressed; or her mind was simply blank (normally due to being drunk). In other words, circumstances led to her loss of willing consent and the court must disregard it. She is asking the court to treat her as a child with limited responsibility, whose consent is meaningless. In point of fact, she is asking for retroactive justice: an assessment of her consent after the fact. If judges remained true to the law and its spirit, they would deny the request.
What is willing consent? Very few human actions are truly free. Circumstances always set limits to freedom; yet, when it comes to rape, courts set a high standard. A woman’s consent is not taken seriously if it falls under ‘understandable’ circumstances. These circumstances are not only objective conditions such as physical duress, treachery or extortion, but also include subjective feelings such as trauma and other mental states, or even her own actions. Experts flood the courts claiming that victims are often unaware that they had been raped. They claim that the trauma is so severe to the point that women are unsure about what had transpired, but the trauma itself could be used as evidence that rape had taken place. Once again, these experts violate the first pillar of criminal law, since what should matter in court is what happened at the scene of the crime, not the understanding of the events after the fact.
Victims are privileged. They are not held accountable for being drunk. On the contrary: the courts decided that the fact she drank alcohol means she could not give her consent, even though she had entered this state of mind willingly. Experts and activists tell us that it is never the victim’s fault. Yet, if the case were different, and a drunken person killed another, the prosecution would successfully claim that the killer entered the state of mind willingly, and that he should have taken into account that while under the influence his actions could be disastrous. Proving criminal intent would be immaterial in such a case. Defendants, therefore, are disadvantaged. They are held accountable in circumstances that victims are not. This fact is ignored because the victim should not be held to the same standard as the defendant. This is certainly true in most cases. However, in the current legal standard for rape, the actions of the accuser determine the mental state of the accused. By willingly detaching herself from her surroundings, she determines the mental state of the accused. How could he know that she is too drunk to consent? It stands to reason therefore that she should be held to the same standards as the accused.
Suppose another scenario: a man has sex with a woman, and she remains silent. She may or may not want it, but she had not given any indication either way. For all intents and purposes, the man has no guilty mind. He had no intention to rape the woman; he simply wanted to have sex and assumed the desire was mutual. He is neither reckless nor is he apathetic. Yet, courts have decided in the past that he should have actively sought her consent. In other words, the man had an ‘objective duty of care’ to ask before penetration. The fact that he did not explore the possibility she may not want sex makes him accountable. Jurists dub this low standard of mental state, or rather the lack of guilty mind, as negligence.
As noted above, save for extreme cases, negligence is insufficient for conviction in a criminal court. Rape is not governed by a negligence rule, though judges have accepted de facto negligence standards for rape convictions. Thus, rape shatters the second pillar of criminal law. No longer does a man have to be of guilty mind to be convicted of rape. In the past, one could have defined legal sexual intercourse as rape without a guilty mind. Nowadays, the courts have made it clear that even if there is no guilty mind, a conviction in a rape case is still possible if the woman has not consented. Considering that only the victim’s mind and thoughts determine her consent (rather than her actions), the thoughts and the guilty mind of the defendant are mostly irrelevant in today’s courts. In essence: the victim determines the guilty mind of the accused, even if she was willfully unaware of her surroundings and as a result was unable to give her consent willingly.
Finally, most date rapes boil down to ‘he said she said’ stories. Why should the court believe the accuser rather than the defendant? After all, the accused is innocent until proven guilty. Experts often claim that no woman would lie about being raped. This assumption is false. Women like men, have incentives to lie. One should assume these incentives are present in rape cases as well. Since false accusations are difficult to disprove, a reasonable doubt is ever present. The burden of proof that she is not lying, or that he is lying should be on the shoulders of the prosecution. This is a heavy burden, one that must be lifted beyond a reasonable doubt; and reason is always filled with doubts.
Suppose for a minute that the accusation is not false. Instead, it represents different perspectives of a situation. The accused never wanted to rape the woman, but the woman understood it as rape. What should the courts do? Since the defendant stands on trial for his own actions, his understanding of the situation is judged, not the victim’s. The court must determine his state of mind and his actions, not hers. The prosecution must prove that the defendant believed she had not consented to the act, rather than deal with her beliefs and actions. Yes, in light of the correct criminal approach, her deeds might speak louder than words if she had led him to think she wanted to have sex.
One must remember that a victim has no standing in a criminal court, and as long as this is the case, judges must treat defendants in rape cases just like they would treat other suspects. Will this mean that many defendants will be acquitted because of the stringent standards of proof? Yes, but that is exactly the purpose of the law. After all in a liberal legal system, it is better to set ten guilty men free, than have one innocent suffer.