By popular demand, due to an apparent glut of misinformation on campuses and elsewhere, I put together a simple flowchart of what is and isn’t rape:
29. Other Considerations
The Illustrated Guide to Law
The comic that teaches what the law is, how it really works, and why.
You can read this entire chapter in its original single-page scroll on the comic’s old Tumblr site here.
Will we see the resolution of this case in the criminal procedure section?
Oh, so this comment is the one we blame.
https://i1.wp.com/lawcomic.net/guide/wp-content/uploads/2016/04/pt05pg104-2.png?w=2800
Though it does explain why Sticky is so angry there… Er, continues to be angry. Can’t say I blame her, she’s had a rough few pages.
Stickie has really bad luck. Just saying.
Other possible issues to consider might be whether he’s had complaints from other women, and whether she’s had substantiated false complaints against other men; either might show a history of intent.
Question: Is it rape if you’re forced to penetrate someone that you do not want to penetrate? For example, say two people are horsing around in the showers and one forces the other’s fingers up their own arse?
And I’m not asking because I’ve seen this happen or anything. I’m just honestly curious.
I landed here due to a comment about deleting browser cookies, but I’m a bit of a Law junkie and so I read on. Great comic, by the way – love it. So clear cut.
Anyway, I wanted to ask your thoughts about a recent appeal case in the UK. A creep of a guy was convicted of rape because he lied to the woman about having had a vasectomy. She consented to unprotected vaginal sex. He later revealed his lie. There was no question over the evidence presented – both parties agreed on a single version of the events that took place.
The guy was convicted of rape on the grounds that his lie nullified her consent under Section 74 of the Sexual Offences Act 2003, the argument running that her capacity to consent was diminished by his dishonesty. He appealed the conviction and it was overturned because “In terms of section 74 of the 2003 Act, the complainant [the woman] was not deprived by the appellant’s [the man’s] lie of the freedom to choose whether to have the sexual intercourse which occurred.”
Section 75 of the Act goes on to describe various presumptions about consent, such as incapacity, drugging, detention, force, threat etc, which didn’t apply in this case.
Section 76 of the Act, however, concerns “Conclusive presumptions about consent” and states “that the complainant did not consent to the relevant act, [… given … 2a] the defendant intentionally deceived the complainant as to the nature or purpose of the relevant act”.
To my mind, the man deceived the woman concerning the purpose of the act – his knowledge was that the likely outcome of the intercourse, the purpose, would be reproduction / conception rather her belief that the purpose of the intercourse was recreation. So I suppose the questions I have are: Why do you think the prosecution would have presented an argument under Section 74 instead of refuting the presumption of consent under Section 76; what place do these findings have in your flowchart of rape; and what future “hard cases” might arise regarding ‘Mens Rea’ where, say, one party consents to a sex act believing the purpose to be forming a closer emotional bond in a relationship whilst the other knowingly (and this is where intent comes in) makes promises they do not intend or cannot commit to – the “Bat Out of Hell” scenario “Will you love me forever?”, or the “Are you married?” scenario, or those cases where a woman says she is “on the pill” but isn’t and intends the act to lead to pregnancy? These people had an intention to deceive, and thus knew they would be culpable morally, but not that they would be culpable legally – they knew they were doing wrong, but not that they were breaking the law. This also involves the question of consequential damages – emotional distress, or in the case of unintended paternity, financial damages for child support.
This flowchart is not valid in the UK. Repost this on a UK legal forum.
Hello. So let’s consider the hypothetical following situation.
I’m John Doe. I’m just a regular male high school student, and I have this friend, Jane Doe. Jane helped me with some of my homework when it was a class she understood better than I did, and I did the same for Jane on those I understood better than her. Safe to say we’re getting along. One day, she invites me to her place, and I bring a board game that we’ve played together before. Things didn’t go according to plan though…
Jane asks me to have sex with her. Having another friend I have a crush on, I tell her “no”. So Jane brings up a more persuasive argument… Her argument was as follows: Either I have sex with her, or she’s going to bruise herself and make it look like I at least *attempted* to rape her before calling the cops. I’m not happy about it, but I’m pretty sure the cops will never believe me, and so I found her argument quite persuasive… And Jane keeps asking me for sexual favors, with the option to call the cops still available… But Jane got careless, and she’s left me explicit text messages where she is explicit about the leverage she used to coerce me.
Does that counts as rape?
What if instead of threatening to call the cops on me, she threatened to accuse me on social media? Assuming she ever gets careless enough to be explicit in the leverage she is using on me in a way that me or one of my friends could legally, is it still rape?
Bubble 6 seems somewhat at odds to me with the downstream “doesn’t matter” points of “but you didn’t actually say no”, “but you’ve had sex with this person before”, and “but you didn’t physically resist”.
Since those are key indicators of knowing that someone doesn’t want to have sex, wouldn’t they matter for bubble 6? I take it to mean that those are potentially sufficient, but not necessary, criteria for criminal rape. But in absence of any of those, what else could be used as evidence that a defendant knew someone was having sex against their will?
In modem sex-ed best practices, this is of course why enthusiastic consent is always the goal. But I am left wondering from a criminal standpoint: what is the most subtle conceivable scenario that would qualify as rape? Does that depend on a reasonable person standard or the defendant specifically? (e.g. would a psychologist trained in reading body language be held to a higher standard for interpreting nonverbal cues?)
On the blue side, the downstream “doesn’t matters” flow from BOTH consensual and nonconsensual sex. The reason why they’re in that order is to hammer home the point that what determines whether the crime took place is what was going on in the defendant’s mind, not the mind of his accuser.
Yes, the purported victim’s mindset is a key element. You can’t have a rape unless the victim does not willingly consent to have sex. But that alone is not the crime. It is merely the condition under which the crime can take place.
The crime ONLY happens when the defendant KNOWS what the victim’s mindset was, KNOWS that the victim does not or cannot willingly consent, and has sex with her ANYWAY.
So even if there is no consent, but the defendant did not know it, then there was no crime. That’s the end of the analysis. No matter what other factors or considerations you want to throw into the mix, it is still not rape. None of those things matter.
So now on to the red side, which is what you’re talking about.
That’s the flip side. Here, we have already established the prerequisite condition that the victim did not consent, AND we have already established that the defendant KNEW it.
That’s the end of the analysis. It doesn’t matter what other factors or considerations you want to throw into the mix, it is still rape. None of those things matter.
– – –
You don’t have to explicitly say the word “no,” just as you don’t have to explicitly say the word “yes.” Consent in the real world, and in the law, is inferred from what’s going on in the situation. There are innumerable ways to make it very clear that you don’t want to have sex, without saying a thing.
I frankly don’t see how “but you’ve had sex with this person before” is relevant. How does the fact that you’ve consented before change the fact that you don’t consent now, and your assailant knows you don’t consent now?
“But you didn’t physically resist” is an important one to put there, because once upon a time the law wanted to see that. But once again it has nothing to do with it. If someone walks up to you in the street with a baseball bat and starts to swing it at you, clearly knowing that you don’t consent to getting hit in the head, is he any less guilty of assault if you didn’t try to fight him off? Of course not. How is rape any different? People don’t just panic by fighting back. They can try to escape. They can freeze up and do nothing. They can even submit because they figure resisting will only make it worse. Why require people to respond in only one of these ways? Yes, trying to fight back would certainly be one kind of evidence that the rapist knew his victim didn’t consent, but it’s only one kind of evidence and there’s no reason to require it.
– – –
Obviously, enthusiastic participation by both parties is the ideal situation. But what about purposely getting a girl so drunk or drugged that she is incapable of understanding what’s really going on, and she enthusiastically says to go for it? That’s rape. And what about a girl who’s perfectly sober and unenthusiastically—but still of her own free will—lets a guy have sex with her even though she’s really not into it? That’s not rape.
You ask what the most subtle scenario would be that still counts as rape, and there’s no answer to that. Human interactions are amazingly complex with innumerable permutations. But remember that the critical factor is whether the defendant knew the other person did not willingly go along with it—the more subtle the situation gets, the less likely it is that the defendant actually knew. We don’t put people in jail because they’re bad at picking up subtle cues, or because they can’t read minds. We put people in jail—for a long time, in the case of rape—because they were clearly doing a bad thing, knowing full well it was a bad thing, and doing it anyway.
Hope that helps!
Interesting that you said “his” and “her”… is it the case then that rape and sexual assault are gendered and different? I know it’s US law that you are dealing with…
No, a woman can rape a man, too. And it does happen. But using “they” and “their” for both parties gets really confusing really fast, so I chose this way to make sure the points are made clearly.