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Case Study: Rape. British law: recklessness is required. A reasonable mistake concerning the woman’s 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.
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Case Study: Rape • British law: recklessness is required. A reasonable mistake concerning the woman’s 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.
American Law • 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.
Susan Estrich’s Essay • Estrich condemns the British standard as a failure to protect women’s 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’s Alternative • 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.
Discussion • Do you agree with the decision in Public Prosecutions v. Morgan? • In Commonwealth v. Sherry, did the defendants make a mistake of fact about the victim’s consent? A reasonable mistake? Should either kind of mistake remove criminal liability?
Discussion Questions • Should actual knowledge of lack of consent be required in rape cases? • Should strict liability be applied? • What about Estrich’s proposal? Is there a clear distinction between reckless disregard of risk and making an unreasonable mistake about risk, due to the improper use of one’s mental faculties?
Further Discussion on Rape • Is a man ever justified in believing that a woman consents when she says, “No”? If so, under what conditions? • Does an error about consent due to drunkenness exonerate? Why or why not? • 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?
In re Yamashita (1945) Yamashita was convicted and executed for “failing to control the operations of the members of his command”. Justice Murphy’s dissent: Yamashita was not charged with participating in, condoning the acts, nor even with knowledge of them. Is this strict liability? Was it justified?
Deeper Questions • Why require mens rea at all? Why not treat murder/involuntary manslaughter in same way? • If punishment deters -- who and what does it deter, and for what purpose? • Does it deter immoral behavior, for the betterment of the soul? Any behavior that reduces total happiness (even if the only harm is to the agent)? Behavior that violates the natural rights of others? Behavior that is contrary to the perceived interests of the majority, the powerful?
Still Deeper Questions • Why have criminal punishment at all? • What would be some possible alternatives to criminal law? • What are the functions or purposes of criminal law and punishment?
Punishment as Educational • Jean Hampton argued that criminal punishment is primarily educative in purpose. • The punishment is intended to “represent” the harm inflicted by the crime. Hence, proportionality. • Does this require a guilty mind? Malum prohibitum offenses? Can actual consequences be taken into account?
Punishment as Eliminating Moral Free-Riding • Michael Davis argued that the law imposes a regime of mutually beneficial self-restraint. Each respects the rights, life, autonomy of other, in exchange for reciprocal restraint. • Willful crime is a form of free-riding: benefiting from the restraint of others without paying the cots of reciprocity.
Michael Davis, cont. • Punishment serves to equalize the benefits and the costs to the intentional criminal, helping to sustain the scheme of cooperation. If nothing were done to counteract free-riding, no one would exercise moral restraints. • What would the implications of this view be for mens rea? Malum prohibitum? Actual harm vs. risky behavior?
Other possible purposes • Criminal punishment as a substitute for systems of private vengeance, vigilantism. If public punishment is too mild, it may be impossible to deter acts of vengeance. • Expressing a community’s outrage • Quarantine of dangerous; rehabilitationn.
