Phl 347 Lecture 3
Case Study: Rape

British Law

British law: recklessness is required. A reasonable mistake concerning the woman¹s consent is exculpatory.
Morgan (Lords 1975). Morgan told his friends that his wife was ``kinky,'' not to be surprised if she struggled.
Lords: reasonableness of belief is irrelevant.

In Maine, Pennsylvania: strict liability is used. Even a reasonable belief that the woman was consenting would not exculpate.
American law tends to compensate by narrowly defining the law: there must be force, met by physical resistance.

Estrich condemns the British standard as a failure to protect women¹s autonomy.
She sees the narrowness of the American definition as forcing women to risk injury.
In addition, ``force'' must be understood more broadly: pressure, power.

Estrich seems to advocate a modified negligence standard (something between negligence and recklessness).
She would exculpate the defendant if he unreasonably believed in the woman's consent, so long as he acted as reasonably as he was capable of.

Should actual knowledge of lack of consent be required in rape cases?
Should strict liability be applied?
What about Estrich's proposal?
In a regular relationship (such as a marriage), should an explicit statement of consent be required in each instance?
Is a man ever justified in believing that a woman consents when she says, ³No²? If so, under what conditions?
If a woman is drunk, can she consent?
If a man has social or economic power over a woman, can a sexual relationship be consensual? What are the criteria?

Why require mens rea at all? Why not treat murder/involuntary manslaughter in same way?
Why criminalize murder in all cases? Why not permit parents to kill their own minor children?

Last updated January 27, 1999
Created by: Robert C. Koons
Send comments to: koons@la.utexas.edu