So, the class today we’re going to
proceed in two parts. I think we should spend a few more minutes talking about duress and battered woman syndrome. I just wanted to clarify a couple of
points that we were making at the end of yesterday’s class and then we’re going to move into our discussion of the unit on rape and sexual assault. For that discussion — I’m going to set the stage for our our full class discussion by
giving you a short lecture that describes the conventional definition of rape, the contemporary critique of rape law and then my own research about why
rape looks the way it does which gives you some additional food for thought and ways to frame this debate. So I guess, for me, what the big puzzle is coming out of the duress unit is whether the New Jersey Supreme Court has revised its opinion of battered woman syndrome. So, in other words, we have Kelly and BH, both coming from the same court and both seeming to say different things about the nature of battered woman syndrome as it relates to these defenses: self-defense on the one hand and duress on the other. So in Kelly, the Court concludes that battered woman syndrome is useful to support not merely the woman’s subjective fear — not merely to support her credibility as a subjective matter but that the syndrome testimony also can
be used to show that she was reasonable, that her view that she needs to use
lethal force is objectively reasonable. So that’s the way I read Kelly.
And yes, I’ve gone back and read and reread it post-BH. So the syndrome testimony, according to Kelly, supports objective reasonableness. Then when we get to BH, the court says — again the same court — says, you know, at least in the duress context, we believe that the syndrome testimony is useful only insofar as it shows that
she’s subjectively frightened, that she wasn’t reckless in staying in the
marriage. And it supports her subjective fear but it doesn’t speak to the objective question: was it reasonable for her to succumb to her husband’s threat and have sex with her stepson, right? So the question is: what’s going on here?
Is the Court, in BH, stepping away from Kelly and suddenly telling us, you know, what the syndrome testimony really only goes to subjective mental state questions or is — is the phenomenon different?
Are we seeing the court, in effect, applying two different standards of reasonableness? At which point things can become quite confusing. But, of course, we do have different standards of reasonableness, different community norms to which we hold people in different contexts. And one of the things that signals that
there’s a different definition of reasonableness at work in the duress context — is the use of different language. The court doesn’t say “reasonable person
in the defendant situation,” it speaks of the “person of reasonable firmness.”
And so, suddenly, you go, “Oh, okay, the standard now is a ‘person of reasonable firmness’ and, presumably, the person of reasonable firmness has more fortitude, backbone, spine, firmness, if you will, ability to resist pressures here, the coercer’s demand that you commit a crime.” So that’s the way I’m trying to reconcile these cases and I’m waiting to see what happens in — in other jurisdictions. The key thing for you to remark here is that — unlike the self defense context where the courts have been and legislators have been overwhelmingly receptive, hospitable to battered woman syndrome testimony — they allow it — in the duress context, they’re hostile.
They don’t want to allow it. They view it as a big problem. They — and they’re struggling to articulate why you’d allow it in one context and not the other. And a number of you have pointed out to me in emails and after class, for which I thank you,
crucial difference between the two cases — and we developed this in class on Wednesday as well — in one context, of course, the woman is killing the abuser, is killing or — or striking out against
the wrongdoer, in the duress context she is harming an innocent third party. Of course in the case we have it’s the most poignant innocent third party of
all — child — but in any of the duress cases, whether it be something more minor — it’s not going to be jaywalking as we remarked — it’s going to be, you know, check kiting or welfare fraud or carrying drugs or, you know, even a more serious crime. Still, she’s aggressing against an innocent person. And the idea is we’re going to hold people to a higher standard before we relieve them of liability when they’re harming third people. So that’s the interesting new development with battered woman syndrome and, again, the question for me becomes: can you distinguish this species of defense for women from other adjacent defenses for men? Because it’s not only women that are
subject to duress from dangerous companions, so too are men. If you think about organized crime families, any sort of, you know, organized drug distribution ring, the people at the bottom who are performing the sort of lowly tasks are
frequently living in mortal fear of the people above them. We don’t listen to duress defences there in part because we say, “Well, you recklessly associated yourself with this crime gang,” to which I’m assuming the children of Mafia bosses say, “I did no such thing! I was just born here.” So the problem again becomes how to distinguish the female from the male. Should we?
Maybe we should allow duress claims to both. Maybe we should allow them to neither.
It’s — it’s — it’s hard to say but this is an interesting development. And one to watch.
The other quick thing that I wanted to mention about this point though, is the courts are hostile to the syndrome testimony when it’s being used to
support a stand-alone duress defense. So — “I carry drugs because I was afraid my boyfriend was going to kill me” — the courts are hostile to allowing that as an excuse to the crime but they may take account of it at sentencing.
So it’s possible that what will happen is that the defendant — if she or I would argue he
has a credible claim, that they were acting under death threats even if they recklessly put themselves in the situation, the argument goes you’re culpable,
we’re going to convict you. But we’re going to give you a discount at sentencing and punish less severely. So — Brian can I take questions now or do you want me to just keep going?
Or are there questions? We won’t put you on film without your permission. so the — the unit we’re going to turn to now — we’re going to begin discussing the law of rape and in this preliminary portion of the study, what I’m going to do is to talk to you about the conventional definition of
rape, describe for you the contemporary reform movement and then talk to you about my own research into the elements of the traditional crime and give you what I think is a fresh and interesting explanation for why those elements take the shape that they do. The research has been really illuminating and helpful and I’ll be really curious to see what you think and — and to get your feedback.
So I want to emphasize: I’m giving what I call a partial genealogy of the elements of rape — and I say partial because I want to emphasize that there’s more than one
account of why it is that the elements of the crime developed the way they did. You’ll know some of those narratives and have them in mind — and of course you want to keep them in mind —
it’s a very complex subject. So my account is partial.
It’s one among many. Of course, I think it’s important, but remains to be seen whether you agree and then I use the word genealogy because I want to signal the historical development here — or the historical aspect of the argument, to be clearer. My account depends on an application of
contemporary criminal law theory but it also is sensitive to the historical
antecedents of this crime. So I really try to think hard about the culture that generated — that created the rape crime that we continue to apply today and to think about the value judgments that were made by people in that culture.
The other thing that you’ll notice — I’m sure — when we start to get into the moving parts of my argument you’ll understand why I wanted you to read the duress materials just before reading the rape materials. I think there’s a really deep connection between the elements of duress and the elements of rape and just to give you a little preview my claim in the end is that the elements of rape are not so much the ingredients of the man’s crime as they are the ingredients of the woman’s excuse for engaging in non-marital sex.
So there’s the thesis in a nutshell. So what I’m going to do is go ahead and describe for you the conventional elements of rape and we’ll do that first and then I’ll talk to you about the contemporary reform movement. Again, one of the reasons —
why do we study any particular crime in this class? There’s a whole bunch of different crimes we could study and we study this one for a couple of reasons: one is that it is an area that has been subject to intense reform right in the space of your lifetime, you know, unlike other criminal —
particularly serious crimes, criminal statutes change tends to be glacial in the criminal law that the —
the definitions don’t change very much. Rape — there’s been tons and tons of reform — a lots — lots of movement. So it’s interesting for you to think about how reforms take place and what they look like and, more to the point, what they
should look like. So one reason for studying it is the reforms are so interesting. The other reason for studying is of course that we all have a stake in it. Sex is something that everybody — I don’t to say everybody does — but yeah sex is something that everybody does. It seems to be something that everybody wants to do. In a post-Lawrence vs. Texas world, we’re being told by the United States Supreme Court that it’s a good thing. This is something that everybody should be doing so this is a very important area. Everybody has a stake in it.
The minute you just decide: “here’s what’s illegal” you are also at the same time defining that which is legal, right? So this is an area where everybody has a stake and then of course the gender politics make it all the more interesting to talk about. So what I want to do first is to talk about the traditional definition and as we’ve emphasized throughout the year or throughout the semester the — you have to be extremely careful about making generalizations, right, so we know that we’re studying criminal law from a national perspective. You’ve always got to look at your state law to know exactly what the details are and this area is no different, particularly today when there’s been a lot of reforms. There are different statutes out there with different kinds of language and so forth but one thing is really clear is that the definition of rape to which these
reforms are reacting — what I’m going to call the common law or the conventional definition — it was the same everywhere up until the ’60s and ’70s. So up until very recently everybody followed the same definition, right? So you can — you can —
absolutely you’ll hang your hat on this is the way the law traditionaly defined rape. Um, the other important thing about focusing here and focusing on this core definition is that it plays a huge role in litigation — criminal litigation today and legislation so all of the reforms are reacting to this
definition. They’re all acting against this backdrop.
Do you want to approve it? Do you want to disapprove it?
If you disapprove it, what do you change? So everybody has this definition in mind as the target. The other thing of course is that the definition really shapes a popular cultural consciousness. This is the definition that a lot of people have in mind when they’re thinking about rape and that holds true for street officials, police officers and prosecutors.
They have this conventional definition in mind as well. So when they’re vetting complaints, when they’re trying to decide, “Should I make an arrest, should I press charges?” they’re often thinking about the extent
to which the complaint matches the traditional definition even if the traditional definition has been changed. It just shapes what we think rape is.
So it’s really important to start. The other thing that I wanted to mention
is that it can be difficult to talk about sex cases — certainly really difficult to read them.
The cases in the case book are, I think, fairly mild but I wanted to mention this problem because it’s been on my mind for the past couple of weeks as we’ve watched the Penn State scandal unfold with Sandusky so one of the things that’s problematic in this area, particularly with the old appellate cases, is the courts won’t give you any detail about what happened. They’ll use innuendo.
They’ll use — to us — antiquated language like “carnal knowledge” they — the judges knew what they meant, we may not know but the other thing is that they would frequently say deliberately, “We’re going to throw a veil over these ugly facts. We’re not going to pollute the pages of our court reporter with stories about these perverse and ugly happenings.” They’d actually say stuff like that.
So that leaves you, the reader, in a great deal of doubt what exactly did happen and I mentioned this just in thinking about the Sandusky case because when you read the grand jury report it looks as though the assistant coach used very explicit language when talking to Joe Paterno, right, but then it looks as though when the report went along the chain people may have stopped saying it was a rape and started saying it was “horsing around” or it was something improper or was a little fondling or something like that.
So it’s really important, I think, to be precise. Not that we’re going to get very precise in this class, but just so you’ll — you’ll understand again part of the problem. People don’t want to talk about this stuff explicitly because you’re uncomfortable. Who wouldn’t be?
So it — my wonderful chart here which I will read to you so you can make sense of it — so this is the traditional definition here
and I’ve put it in a box in the middle of what I’m going to call our world and
our assumptions about sexual regulation and what I’m going to call the former
world, the world that created this definition, the world out of which our conventional definition of rape came and the conventional definition again
required conduct and the conduct was sexual intercourse.
It wasn’t other kinds of sexual touching. It had to be actual sexual intercourse.
So it’s sexual intercourse with another person. And you’ll notice the third element: with another.
Not one’s wife. So there’s a marital rape exemption.
Men cannot rape their wives. By force,
and against the woman’s will. And all of these elements have to be satisfied.
So it’s sexual intercourse with another — not one’s wife — by force and against the woman’s will. You can immediately see when you look at that crime that it’s not gender-neutral. This is a crime in which men are always the perpetrators and females are always
the victims. Of course that remains empirically true today, we think, Though, of course, I’ve been talking to some of you and after our discussion of Hany we talked about prison conditions and there’s a lot of male on male rape in
Again, we tend to think of this as a crime where males are the perpetrators,
females the victims. That was the position coming out of the early law. So what I want to do next is just briefly describe for you the contemporary critique of the law of rape that has led to this very dramatic reform movement that’s still going on. There’s a lot of activity in the area
and a lot of interest and it’s going to be for you all to decide. You’re the ones who will be in charge, oh, three — about three years from now you’ll be out there, you know, prosecuting, defending, legislating, judging, doing all those things and deciding what these definitions should be but the contemporary critique, which of course a lot of women’s rights groups participated in but lots of other groups as well, you know, focused on just about every element of that crime and have argued that it should be changed. And we’re not going to go into a great deal of detail on some of it but the argument is that sexual intercourse shouldn’t be the only form of conduct. That this definition should be expanded to include other kinds of touching of a sexual nature. Of course elements two and three:
the idea that the crime can only be committed on another person, not one’s wife. The idea that there is no marital rape has come under a great deal of scrutiny and attack and the marital rape exemption has been abrogated — in some states it’s been eliminated completely.
But it’s still in place in a modified form in many states. So the marital rape exemption —
again, there’s no longer an absolute exemption but still we tend to define marital rape differently from the basic crime and then the other two elements:
by force and against the woman’s will. You want to notice that these two —
each of these have to be satisfied. These two have also come under intense scrutiny and and here’s why. In the conventional definition, the fourth element means physical force. Physical violence and only very serious physical violence. So, four would be satisfied by threats of
death, a grievous bodily harm, sort of, gun to the head kinds of threats.
Very, very serious threats. And nothing else satisfies the force element.
So you’ll want to notice it’s — it wasn’t satisfied by psychological coercion or economic threats or other kinds of threats. It had to be physical violence.
Next, and what’s important as well is this element five: against the woman’s will.
We call this non-consent today. And at the the common law definition — the early traditional definition, which is still in place to some extent, requires physical resistance by the woman.
So verbal resistance — saying “no” —
and we saw a glimpse of this when we
talked about Ross, our abandonment case —
merely saying no is not sufficient to satisfy the non-consent element. instead, there has to be physical resistance by the victim. And what’s interesting about the early common law cases is that the physical resistance has to be “earnest” or “utmost.” And the courts would say that the woman has to fight until she can fight no more. She has to fight until she’s literally physically overcome by the man’s superior force. So that’s the basic definition. Now I want you to set aside cases where the victim is unconscious or sleeping, right. That too could be a rape if you had —
if a man had sex with an unconscious woman. And then also if element four is satisfied by a literal gun to the head or, you know, a knife to the throat. The woman is not expected to resist then, the idea being she doesn’t have to die, you know, literally put herself that far in harm’s way.
Um, so a threat, a death threat, a credible death threat — she doesn’t have to physically resist but otherwise she does. So there will be cases —
there’s a great case by the United States Supreme Court from the — I guess it’s the late 1800s — in which the woman was proved to have verbally said “no.” the attacker was a notorious bandit
of some sort and the woman was proved to have said “no” but she didn’t physically resist so the court said, “Not a rape.” And the reason it’s not a rape is: though by her mouth she resisted — she verbally resisted — by her body she consented.
So again the body consents — the body can consent. You have to physically resist.
Okay, so with that in mind I think you can immediately see — and many of you probably know what the contemporary critique looks like — but just to position it clearly:
the contemporary critique proceeds from the premise that the crime exists to protect sexual autonomy.
The — the criminal prohibition exists in order to secure sexual agency for people, right?
So the idea, you know — sort of basic liberal philosophy: sex is a good. It’s an asset.
It’s something that can and should be exchanged by adults. And that law is there to promise people that the law will step in and protect
them if their autonomy is being threatened in some, you know, illegal way. And the basic idea is that the crime should exist to protect female sexual
autonomy. For whatever reason women seem to have less power in this arena than
men do. Maybe because they’re physically smaller,
maybe because they lack resources, they may have have difficulty resisting men’s advances. So the critics argue, you know, this law exists to protect women’s — female, I’m sorry — to protect women’s sexual agency and when you look at the crime from that
perspective you can see that it’s just thoroughly reprehensible, misogynist,
really, really bad, right? So the argument would be: if the crime exists to protect sexual agency or autonomy of women or of men why would you limit the crime to those episodes that are performed by physical violence or force? The law recognizes — think of the law of theft, right, think of stealing property — the law recognizes in many places that people’s autonomy and their rights can be invaded by forces or pressures other than force, right? There’s fraud, there’s other kinds
of coercion, as I mentioned — psychological coercion and so forth.
Why would you limit it to physical force and why this very serious physical force, right? So why not open it up and punish other kinds of pressures? The other of course very fierce subject of the critique is the physical resistance requirement. If this crime exists to protect women’s sexual agency why would you say that the only way for the woman to express herself is through physical resistance if she
expresses her autonomy by saying, “No, I don’t want to participate” that should do it, right? “No means no,” I’m sure you’ve heard this.
It’s a consciousness-raising slogan as well as a prescription for law reform, right? But the idea would be:
why would you make the person fight back? And that argument then gets supplemented by scholars from a range of fields who’ve pointed out that when
women fight back they often get hurt much more seriously than they would have
if they’d simply gone along or tried other other forms of resistance. So why would the law be defined this way?
And, of course, the response, as you know, then, is, I think, properly critical but it’s also thoroughly political:
the reason for these elements being defined this way is to preserve men’s access to unwilling women. So as long as the woman merely says “no” the man can proceed, right? As long as he doesn’t use the most excessive forms of violence to overcome
earnest resistance he can proceed. He can go for it.
You know, that’s a thoroughly misogynist way of thinking, right? It is absolutely, right?
But here’s where my — my argument comes in, and we’ll see what you think.
So I’ve written the two different perspectives on the board. I’ve got our world and then I’ve got —
written the former world — and here what I’m aiming for is to have us think about our ideas about what sex the law regulates, right? So, today, is this what you think?
Illegal sex is rape. I’m not thinking about sex with minors now.
Of course we’d have statutory rape I’m just thinking about adults.
Illegal sex is rape and legal sex is everything else, right? And that’s post Lawrence vs Texas, right?
So everything’s legal except for rape. So that means the factor that divides illegal from legal is consent, right? It — isn’t that the way you think of it? Yeah, I’m just thinking let’s — let’s keep
the family crimes out for the moment. We can — we can layer them back in if you
So I think that’s the way we think of it, certainly in the post-Lawrence vs Texas world, right? Right? I want to keep that out, right?
For the moment. And you’re right: those are hugely important.
This is just focused tightly on right now and then the the argument expands from there but, you’re right, there’s a bunch of other things and the question is what what is the appropriate liberal position towards
prostitution, you know. Should you — should you decriminalize and regulate? Maybe that’s the direction we’re going to move in.
So just focused here on this. Um, okay. So it’s from this snapshot of the world — leaving aside children, leaving aside families and leaving aside commerce — when we think about unattached adults who are not selling their sex, rape: crime; everything else: go for it.
Okay? My point of view is a different one after studying in this area for — especially when I was writing the chapter for our casebook it struck me that the elements of the crime do not emerge from this kind of way of thinking about the regulation of sex but from a completely different one. The former world out of which this definition emerged had an entirely different set of expectations and regulation. So in the former world, the only legal sex is marital sex. Everything else is a crime.
So illegal sex is fornication, adultery and rape and the only legal space for sex is in marriage. So again the line that divides legal from illegal, illegal from legal, is marriage, not consent, right? So the basic point is the former world that created —
the judges and ultimately the legislators but — certainly the early common-law judges and their ecclesiastical counterparts, they were not thinking about protecting people’s sexual autonomy. So when they were they were designing these elements, to the extent they were designing them thoughtfully, and I’m sure that they were, they weren’t thinking about protecting sexual agency. Instead what they were thinking about was channeling all sex into heterosexual marriage. The idea was that sex was this force that was so powerful and so important, maybe a really good thing but it had to be located here, in marriage, not here, in consent. So that’s the shape and you immediately see — I mean, doesn’t — don’t the tumblers start to click in your head? You go, “Oh, I get it! When a woman comes into court and complains that she’s been raped the question for the judge is not was it rape or legal the question for the judge is what kind of illegal sex was it?” Totally different question, right?
So, by definition we know the woman coming into court — she has to be unmarried, right?
She can’t be — there is no such thing as sex between husbands and wives that — again, shows you how very significant a role marriage played. Everything in marriage is legal.
Everything outside is not. So when the woman comes in, the judge is looking at her as a potential criminal. So when contemporary critics fault the law, as they should, perhaps, for putting
the victim on trial — you’ve heard that phrase?
The law of rape puts victims on trial? We scrutinize the victim.
Well, of course it did. judges in that former world, prosecutors, police officers in that former world would have to be starting from the assumption the woman’s body at a minimum was the site for illegal sex. She participated in non-marital sex.
it’s either fornication or adultery, in which she is an accomplice, or it’s rape.
So, in other words, she has to prove that she’s got a defense to fornication or adultery and that’s what those elements are all about.
Isn’t that fabulous? It does and it doesn’t make these elements any more acceptable to us
because we do live in this world today. Now that Lawrence vs Texas has been passed, even the Supreme Court of Virginia is in you — a very conservative courts agree: fornication: unconstitutional. Can’t prosecute it anymore, right?
Adultery: it’s not so clear how the courts would rule on that but that’s the — the key insight. And then you want to play it out by thinking through each of these elements,
right? So one thing you definitely would need to get rid of is the marital exemption. If marriage no longer is the line that separates illegal from legal you’ve got to get rid of the marital exemption, right? And then you want to be thinking about how should these elements be defined. And then just sort of as a run-up to that I just wanted to share with you some of the historical research that I did which was really, really interesting.
And it’s not historical research that I did, it’s reading of secondary sources of people who actually dug into colonial trial materials — We can’t call them trial transcript,
but colonial trials, particularly in Massachusetts in the New England area. So you have these trials.
They’re court magistrates. And what do you think the biggest item is on the criminal docket? Its sex, right? Lots and lots of fornication and adultery cases, right? That’s the business.
They’re really into this regulation. Again it seems unthinkable to us but they were really in the business of regulating, prosecuting, convicting. So how did you find out that this had occurred?
How did you find out that someone was
fornicating or committing adultery? Now, of course, there’s neighbors and so on and so forth. And I’m trying to picture what the — what, you know, I’m picturing sort of green fields or something. Or, you know, whatever, um, but how do you think that it came to the attention of the community? The woman turns up pregnant.
That’s exactly right. So the woman turns up pregnant and
someone takes her into court and then what happens? What does she say?
She might say she was raped, right? But, no, what’s really fascinating is that in the vast majority of the cases she didn’t — she didn’t say she was raped.
She said, “Yep, I’ve had sex.” Again, they talk about your body confessing.
The body confesses. She can’t deny it and she would name the partner and then typically what would
happen is the partner would come in and he would confess. It was a confessing culture at that point.
The — the people in the colonies didn’t buy into this privilege against self-incrimination that we are so deeply attached to now so they would confess and then what would happen? What would they be ordered to do? What would you tell them to do?
Yeah, Manny? Get married! Exactly. There would be some kind of shaming punishment. We didn’t put — incarcerate people.
There’d been some kind of shaming punishment and then the order would be to get married. And let’s not go there.
There’ve been articles written on whether marriage should be viewed as a punishment But let’s not go there.
So — so — so that’s — But that’s exactly right.
The woman turns up pregnant, she ends up in court. But your insight is really important, Mickey, because what would happen in a very small number of cases is the woman would not say, “Oh yeah I’ve been canoodling with my neighbor.
Let’s bring him in and let’s talk marriage.” Instead she would say, “He raped me.
He raped me.” And at that point the judge’s reaction is to demand that she show that she’s not guilty of fornication or adultery. How does she do that? She does.
Now we can review the whole course. She does that by proving no actus reus or no mens rea or a defense. And the one that came immediately to my mind when all of these pieces started coming together was duress. So you can see, just looking quickly at the elements that I’ve sketched for you: force and against the will defined as physical violence by the man and physical resistance by the woman really mimic what you’d expect to see in a duress defense. In other words: if — and the way to see how this works in practice is to think about an analogous crime today that we care about. It’s hard for us to get motivated to think about demanding people defend themselves for fornicating, right? We just don’t do it anymore.
But imagine that someone is caught not pregnant but was caught having robbed a
bank and that person is brought in and they’re —
“We accuse you of robbing the bank” and the person says, “Well, my friend made me do it.”
We wouldn’t allow that person to get off unless they could show that they were coerced in some meaningful way. In other words that they satisfied the
duress defense. Now, you may want to criticize the duress defense.
We started discussing that yesterday. Should it be as tough as it is.
But unless you can throw — show that you were subject to death threats, we’re not gonna say, “Oh, fine, it was your friend’s idea to rob the bank” and — and notice we’re not going to endorse a “no means no” rule either. You can’t say, “My friend asked me to rob the bank.
I said no and then I went along with it.” You just can’t do that.
We would say, “I’m sorry you need to do more. Again, the person of reasonable firmness in the community has got more backbone than that. So we expect you to struggle.
We expect you to resist. We expect you to try to escape.
And it’s only if you’re subject to a threat of, you know, physical violence that we’re going to let you off the hook. And so these two elements: the force and physical resistance mimic perfectly the duress defense, particularly the duress defense in the early cases where it’s very, very tough to satisfy. So with that insight in my mind I then started to explore other scenarios. So would there be cases where the woman could say, “I lacked any actus reus.” And those are the unconscious victim cases, right?
If you’re unconscious or sleeping — that’s Martin, right!
See the whole course is in this, I just suddenly realized that. So that’s Martin, right?
You haven’t committed an actus reas. You were asleep.
And what’s really interesting — again when you go back historically you realize that sleeping arrangements were different than they are today. People didn’t have a lot of separate spaces.
You haven’t had — go to visit Thomas Jefferson’s house and you’ll see how tiny the beds were in parallel. Ten people were sleeping in them.
But in any event, very different arrangements. But, the same idea: no actus reus.
I was asleep. What about fraud?
It’s here that I’m thinking about mens rea arguments. In what kind of a case would a person lack mens rea? Uh, again, remember what we’re thinking about.
A woman is accused of fornicating or committing adultery and she wants to say, “No, no I have a defense to that. I lack mens rea.”
Uh, Jillian. Exactly, “I thought it was my husband.”
And you’ve nailed it. That’s the only kind of fraud that the
law would allow and would punish the fraudulent partner. Any other kind of fraud, you would not be acquitted.
Again because you knew you were having sex, right? As long as you know you’re having sex, you know enough to punish you for
this. The only thing that lets you off the
“I thought it was marital sex. I believe that I was having sex with my husband.
Therefore I believed I was having legal
sex not illegal sex.” At that point we would convict the perpetrator of the fraud for rape but otherwise there isn’t any rape
by fraud. Okay, so at the end of the day what I decided was that if we take seriously the commitments of this prior world — a world that is committed to regulating, very thoroughly, people’s sexual activity and insisting that sexuality takes place in marriage,
when you take those commitments seriously these elements make a great deal of sense.
And they may be misogynist in practice but they weren’t necessarily misogynist
in the way we experienced them. At least, in intent.
And one of the interesting things is when you go back to the colonial period you see that there really was, at least formally, a single standard of chastity, you know. Hence the the idea:
bring the couple in and make them marry. Men are supposed to be chaste and faithful to wives just as women are supposed to be chaste and faithful. I’m not saying the world was not a sexist one but there’s a really interesting
glimpse there of a kind of egalitarian approach, or potentially an egalitarian approach to this problem.
of course, that’s completely broken down. We’re not interested in that anymore.
At least, I’d wait to hear from you. So, the question then becomes:
if this is correct, what’s the contemporary justification for these elements? Right? So what I like about my argument is that it sort of clears away a space for a discussion about the contemporary justification that frees you up from some of the —
a little bit of the difficult politics. Maybe a lot, maybe a little.
but so what might — what my claim is is the following, and it’s simple:
we no longer prosecute anybody for fornication or adultery — well, we may do this but we no longer
prosecute people for this, let’s assume we don’t. If not, than it’s not fair to continue to require women, when they come within the confines of a rape prosecution,
to defend themselves from those charges, right? We’re not prosecuting it anymore.
It’s unfair to require women but not men to defend themselves against those charges. So just start from scratch, if you will, start
And now the question becomes: what should the elements of the crime look
like? With that in mind, if I can do this — Yep, what I want to do is to show you next — here’s the the regulatory patterns that
we currently have, and you can start thinking about these. And so I’ve written on the board:
you can have a “no equals yes” paradigm, a “no equals no” paradigm,
“yes equals yes” paradigm or a “yes equals no” paradigm,
and I’ll flesh those out now briefly so that you’ll understand their shorthand, but what I mean when I speak about “no equals yes,”
I’m thinking about the common law definition, right, in which a verbal no was construed to be “yes” was construed to be permission. if all the victim does is say no —
even if it’s proved clearly she said no — that’s not going to suffice.
You have to fight back, okay? And so one question that the reform movement has raised and that’s been on the — well, it’s been on the legislative radar.
In fact, some legislatures have endorsed it is:
let’s get rid of this rule. Let’s get rid of the physical resistance requirement and just simply punish non-consensual sex. And that would be a “no means no” rule.
If the victim verbally says no that’s sufficient. And, again, remember, you’ve got to prove this beyond a reasonable doubt. This can be difficult but if you can prove beyond a reasonable doubt that the verbal no — that should be punished and then the question, of course, is how do you grade that crime? Do you punish that crime as “rape,” the very serious felony? At, you know, coming out of common law and actually well into the middle of the last century rape could be a capital crime. Today, the rape of an adult woman cannot be a capital crime under the Supreme Court’s death penalty jurisprudence but it’s one of the most serious felonies we have, as I’m sure you know. So should — if you have endorsed this “no means no” rule, would you endorse that for the most serious degree of rape? Or would you possibly set aside violent rape for more serious treatment than non-violent? And that’s — and I’ve written “Berkowitz?” because Berkowitz is one of the cases in the notes that raises this question. The next interesting position that you could take is one that’s embodied in a case called MTS. It’s a juvenile proceeding so we only have the initials of the defendant and it’s — this is a case decided by the New Jersey Supreme Court and I’ve written “yes means yes” to indicate that in New Jersey a rape
occurs when a partner to a sexual encounter proceeds in the absence of an
affirmative permission. So it’s not enough for the partner to say the other guy, the other woman didn’t say no. There’s no burden on anybody to say no.
Instead, what we do is we put the burden on people to secure an affirmative
permission before they go forward.
And this is a an interesting and very
important development. And I write “yes means yes” —
and I’m not trying to signal that the “yes” has to be verbal. The affirmative permission can be done
through body language, maybe other inferences you could draw, but that’s the next move.
Rape occurs in the absence of permission. And so some of you may be familiar with this.
Students speak to me from time to time about various college campus codes that adopt this kind of a definition. It’s law of New Jersey and — and for their most serious crime. Then the last possible paradigm that I’ve written down is a “yes means no” rule and we associate that, of course, with statutory rape, right? And we associate it with incest, right?
So there are going to be categories of cases and spaces where we’ve decided that there are serious objections to having any sex occur.
And the statutory rape — and here, on thinking adult-minor interactions.
The idea is that even if the minor says yes — and judges sometimes are inclined to view this, and maybe the community as
well, this really was consensual.
We don’t think about that with minors. But doesn’t matter. Say yes all you want, it’s still no. It’s still impermissible.
And the question for you going forward is whether you want to carve out additional categories of what I would call statutory rape.
So we have the incest example on the table. And this I take it is a difficult question post-Lawrence but I’m thinking of other contexts: statutory rape: adult sex — adult having sex with a minor. The thought is that the power imbalance is so severe that there’s a real risk of exploitation of the minor. The minor is saying “yes” but this is just not meaningful for a whole range of reasons. The minor, you know, perhaps lacks the cognitive capacity to know what the consequences are going to be. And then also isn’t in a — the —
the power imbalance is so great that we’re just not going to allow this. Are there other contexts where we find
that kind of power imbalance? One place that we’ve seen these laws extend is sex between prison guards and prisoners. So, it used to be the case that the prison
guard would say the sex is consensual and the prisoner might even say it’s
consensual and you see this with both male guards and female guards, right? And states have started to pass laws that just say, nope, it’s prohibited. It’s kind of a “yes means no” rule.
Would you extend that to other contexts? Teachers and students, people in positions of authority and their — their, you know, their inferiors? Yeah exactly, exactly.
And I’m so glad you brought that up,
Gillian, because what started this whole project of mine was reading military prosecutions in the area of rape. And when I — the — the military has a really wonderful criminal justice system. They try lots and lots of cases and they regulate sex very thoroughly it turns out. Lawrence vs Texas has created a new world for the military as well as for us. But what I discovered when I was looking at rape cases in the military is that they are prosecuting adultery and fornication as well. Fornication, when it occurs between a senior officer and a subordinate officer
they call it fraternization. But they also prosecute adultery and you may — may — some of you may have read about these cases.
And it was at that point that I said, “Oh, there is a world that takes very seriously the commitment to regulating
sex and confining it to marital sex. Something along those lines.
What implications can I draw from that from our crime of rape?” And that’s exactly right so when you talk to prosecutors from the JAG school as I
have done and defense lawyers from the JAG school as well —
they’re right next door. It’s just — they’re wonderful colleagues.
They — they have told me that it can be really, really difficult because in some of the installations, nobody’s supposed to be having sex with anybody else. That’s there. Nobody —
no sex, none. And so if a woman comes forward and says she’s been raped, they’re in this
devastating position of having to think, “Is it possible that this was a forbidden
form of fraternization or adultery?” And so, in other words, they’re — the army
prosecutors or the military prosecutors are going through the same thought process as these old colonial magistrates and, again, it’s very agonizing.
They don’t want to blame the victim but the rules are such that they’re forced to ask themselves, is it possible that she also was an accomplice to this crime? Yeah, so which of these do — do you want to endorse? This one? — oh, I guess the question is —
and this — this is — this is a very serious question — what’s the function — if any — of physical resistance in contemporary culture? Do — do we retain physical resistance by the victim?
You again — so what should the definition of the crime be? Just about all contemporary observers are on board with the idea that the
gravamen of rape is non-consent. That’s what we’re looking for: is non-consensual sex. And everyone agrees that force matters.
But notice we don’t prosecute forcible sex. It has to also be non-consensual.
We leave it to people to decide what their arrangements are going to be. And as long as it’s consensual we’re going to stay out. So the argument goes:
so everyone today says it’s non-consent but to find how is there some rationale for retaining physical resistance as the definition of non-consent, and I mean a rationale for retaining this as a doctrinal requirement? I can see the evidentiary value, right, and, alas, it’s a very sad story to tell, but prosecutors and police often are looking for evidence on which they can make cases and you know the old he-said she-said conundrum: we have to prosecute and prove this case beyond a reasonable doubt. Jury can decide that the victim is credible —
the alleged victim — and the accused is not but it can be difficult to break that deadlock without some additional evidence, right, and physical resistance will leave behind some — some — some physical evidence. Some — some — some wounds.
Something to show that there was a struggle. Something to show this was non-consensual.
So you can understand why prosecutors may think, “Gee, the jury is going to have a hard time
accepting this case beyond a reasonable doubt if I don’t have some evidence.” Is that the only function of physical resistance?
Does it serve another function? I guess that this is my question is —
Terrell, thanks, that’s the question: there are two places in which it performs a kind of evidentiary function, if you will. One is in the trial after the fact but then one is in the encounter at the time the guy, as you said — and it usually is a male who’s accused.
It’s not inevitable but — but almost always. It’s evidence this person really means no, I gotta back off. Is it necessary?
Is there some reason to think “no” doesn’t mean “no” is what I’m after because that’s the argument that we hear:
“no doesn’t mean no,” “no” means lots
of things. What are your dictionaries saying about
“no” these days, I forgot to check — it’s the words change so quickly.
But did so — so, yeah, that’s the question.