Rape is penetration without consent – isn’t it?

Another journalist gets it spectacularly wrong.

In this article, Brendan O’Neill argues that the statement “Rape is sex (sic*) without consent” is incorrect. He bases this viewpoint on the allowance in law, that the act is only rape if the man does not reasonably believe that consent is given.

There is a much more scholarly debunking of his article here. However, I’ll still give my thoughts – this is after all, the internet.

He makes the statement:

…in order for rape to have occurred, it is not enough to prove that the woman did not consent; we must also surely prove that the man knows she did not consent, or was utterly reckless as to the question of her consent, and carried on regardless.

He then goes on to say that, in order for the act to be rape, it must:

 …involve an intention on the part of the man to commit rape. The man must have a guilty mind – or what is referred to in law as mens rea – in the sense that he knows he is committing rape.

Surely that cannot be the case – if it was, then he would be re-defining rape to the extent that practically all date rape, and many cases where the perp is known to the victim are not in fact rape.

Clearly, he fundamentally misunderstands the meaning of the phrase “Resaonably believes”. He does this by turning it around, and stating that the phrase:

A does not reasonably believe that B consents.

Is the same as

A knows that B does not consent

This is a logical fallacy. There are many cases where a man does not “reasonably believe that he has consent”, where he also does not “know that he does not have consent”. Some examples:

  • He UN-reasonably believes that he has consent. For example, he has based his belief on how the woman is dressed, that she has accompanied him back to his place, that she has consented in the past….and so on.
  • He believes that sometimes no might mean yes
  • He believes that if he “presses on” she will change her mind.
  • He simply doesn’t care if he has consent
  • He is unaware of the law regarding consent (eg in the case of being too drunk to give informed consent)  – note, ignorance of the law is not a defence.
  • He may be one of the many who have simply redefined (in their own minds) what rape is
  • There are probably many other examples.

In all these cases, he might not know that he does not have consent – He probably does not believe he is committing rape, he may not have the “guilty mind”

But he is surely guilty.

A final point. Using such an innacurate argument, as education for young men on how to navigate around the legal pitfalls of sex and consent is doing them a gross dis-service. If as a result they form a legally incorrect view of what rape is, and then go on to make a horrific “mistake”, they will not find themselves with Brendan O’Neill (or anyone citing his rubbish) on the other side of the bench, but a judge with a much better idea of what the law really is.

*Also like many, good old Brendan is confusing sex with rape. Rape is not “sex without consent” because rape is not sex.

 

 

 

 

 

Having beein involved in the twitter discussions over the previous few days, I have, like some others, concluded that twitter is totally unsuitable for discussing such sensitive and emotive issues. I will not be discussing this (or any other) post on twitter. If discussion is required, I am happy to have it here, but it will be moderated (see home page)

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