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:

Was It Rape 5 700

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There are now 11 comments... what are your thoughts?
  1. You can read this entire chapter in its original single-page scroll on the comic’s old Tumblr site here.

  2. Gregory Bogosian says

    Will we see the resolution of this case in the criminal procedure section?

  3. Tim says

    Stickie has really bad luck. Just saying.

  4. KW says

    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.

  5. The Phule says

    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.

  6. 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.

  7. John says

    This flowchart is not valid in the UK. Repost this on a UK legal forum.

  8. Shaeliss says

    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?

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