Simple rape and the risks of sex

This paper addresses the question of whether rape-law reform should treat all cases of simple rape—nonconsensual sex that does not involve the use or credible threat of physical force—as a serious crime. Of primary concern here are those sexual interactions, often referred to as “date rape” or “acquaintance rape,” where the coercive element is not physical force as evidenced by reasonable resistance. Should, as some feminist reformers have urged, felony rape include sexual interactions that may not be fully consensual but do not include the use of physical force? If so, can convincing answers be provided for due process questions about what constitutes valid consent to sex and how to tell when it is present. This paper warns of the difficulties in determining what counts as evidence of nonconsent and mens rea in light of the “linkage thesis” which takes valid consent in these cases to be bilateral and interactive, and to imply the absence of mens rea. Given the complexity of norms governing these sexual interactions and the high likelihood of reasonable mistakes about consent, this paper contends that criminalizing these cases of simple rape will often result in the unjust treatment of the relevant parties.

Title	Simple rape and the risks of sex
Creator	Panichas, George E.
Publisher	Law and Philosophy
Academic Department	Philosophy
Division	Humanities
Organization	Lafayette College
Date Issued	2006
Date Available	2010-11-30T20:50:25Z
Type	Article
Language	English
Keyword	Law Theory
	sexual assault
	Law
	rape
	date rape
	Philosophy of Law
	Logic
	Social Issues
	Political Science
Bibliographic Citation	Panichas, G. E. (2006) "Simple rape and the risks of sex." Law and Philosophy 25: 613-661.
Standard Identifier	Handle 10385/769
Standard Identifier	DOI 10.1007/sl0982-005-5882-9
Permalink	http://hdl.handle.net/10385/769
Rights Statement	In Copyright
Rights Holders	Springer