(note- I am going to bring some of my old blog posts, from my two previous blogs, back to life. It’s sort of like a greatest hits. Plus, I am shuttering my old blogs due to some of their more incendiary posts.)
There is a class of crimes that are strict liability, meaning that mens rea is not a required element of the crime. Intent does not matter, it is merely a question of whether the defendant committed the act in question or not. Historically, strict liability has been limited to public welfare crimes, such as statutory rape.
Extending strict liability to all categories of rape would seem like a natural progression. The history of the criminal law’s treatment of rape is far from exemplary. It had been dictated for several decades by a patriarchical legal system and society. Even now, there are states (LA and MS) that require a high level of resistance by the victim in order to meet the criteria for rape. The remnants of our culture’s deference to the boys will be boys ethos continues to debilitate women.
However, a strict liability scheme would go some way to remedy the current problem. By eliminating the intent requirement, especially for forcible rape, the victim (represented by the state) would no longer have to prove that the act was non-consensual. It would leave open an affirmative defense of consensuality, and the burden could be set to beyond a reasonable doubt. Also gone would be the hair splitting many courts have engaged in as to what constitutes force (for the many it is still actual physical force in the moments preceding the act).
One of the pitfalls of such a scheme would be the circumstance where one or more parties is/are intoxicated. Imposing strict liability here might raise the defendant’s burden unreasonably high. However, one might argue that under the current regime the burden on the victim/state is too high. It is a thorny issue that perhaps needs to be dealt with outside of the purview of traditional rape statutes.
The other argument against strict liability is that it unfairly burdens sexual initiators, who are disproportionately male. Yet given the scary realities of rape in our society and the realization that no matter which way the system is crafted some party will bear a higher burden, this seems to be a workable solution. The defendant’s case will still rest in the hands of a jury of his peers, who will determine if his actions were reasonable. But by switching to a strict liability regime, it is the defendant who will have to show that his behavior was unassailable, rather than the victim.
Defendant’s would no longer be able to rely on tactics such as casting the victim as a whore who was asking for what she got. Gone would be inquiries into the victim’s sexual past. The focus would be placed squarely on the shoulders of the the person who initiated the sexual contact, more often than not. And please let us realize that the vindictive woman scorned is merely a strawman for a society unwilling to recognize some of its members’ inhuman behavior.
(originally posted February 2004)