Outline

Thesis: Rape is a problem that our justice system is not well equipped to address, and the law is over- and under-inclusive as a result. An intermediate misdemeanour charge, which entailed education and therapy instead of jail time, would be a better method than either full acquittal or a full rape conviction for dealing with acquaintance rapes where physical force was absent and which are based on a mistaken belief of consent.

What is the problem with rape and the law?

Note: all states have different statutes, there have been many positive developments in rape law in recent decades, I am here only dealing a specific issue: male-female non-forcible acquaintance rape. Some states don’t even recognize non-forcible rape. Some countries take the woman’s statement that she didn’t give consent as sufficient to shift the burden to the defendant to prove otherwise (Canada).

However, pretty much everyone agrees that rape is still endemic to our society and is also chronically under-reported

Cases that are adjudicated almost always hinge on he-said, she-said and so are going to be over and under inclusive

The disparity between rapes committed and rapes reported indicates that the law needs to do a better job of addressing rape

Why does the law do a bad job of dealing with rape?

Rape is different than other crimes in that there is rarely evidence outside of the testimony of the victim and defendant

Rape is complicated by gender stereotypes and traditional beliefs about sex roles

There is therefore a subjective element to rape that makes it especially ill-suited to be dealt with by a justice system that attempts to establish the objective truth by examining evidence (there is generally none) and deciding on credibility (both parties could be credible bc both could be telling what they perceive as the truth of what happened)

Stuck with either trying to make the law normative (can talk about cannibalism article here) and punishing people for crimes they did not realize they were committing, or acquitting and thereby tacitly endorsing non-forcible acquaintance rape

If there is a genuine mistake about consent, it is unjust to punish the rapist. This can happen under a law like Canada’s, which says that if the victim was incapable of giving consent or made any indication of lack of consent, mistaken consent cannot be used as a defence. However, it is also unsatisfactory to acquit the rapist bc he obviously engaged in sexual conduct that was unwelcome. So the law can be both over and under inclusive

It follows that the way to deal with this is to work towards eradicating the societal ideas that lead to acquaintance rape

Mandatory Education and/or Therapy to Combat the Problem

An intermediate charge that could be used in non-forcible acquaintance rapes might provide a viable alternative. A conviction under that charge would ideally entail therapy sessions and sensitivity training for the defendant. The training would focus on eradicating the traditional ideas that lead to acquaintance rape based on miscommunication. Ideally this would impress on the offender the seriousness of what occurred, and prevent a recurrence, without the stigma and severe punishment of a rape conviction. The victim would also be vindicated in some sense because the court is recognizing that what the offender did was wrong.

Obv there are potential problems (might put real rapists back on the street, high costs of therapy, etc). The most serious risk is that this could be abused by juries to “excuse” date rape. It would have to be made clear that there is a high standard – the charge can only be made where there is convincing evidence that the perpetrator had a genuine, objectively reasonable, good faith belief that the victim had consented.