Abstract

The defense of consent and the alleged difficulty of determining if a victim has given consent prevent the crime of rape from being congruent with women's experience of it. If the perpetrator of a rape mistakenly believes that the victim has consented, the perpetrator fails to have the necessary criminal intent, or mens rea, and thus cannot be held culpable for the crime. I consider the appropriateness of holding these persons to a standard of negligence, ultimately concluding that this standard of liability fails to characterize the mental state of perpetrators of these crimes. I then argue that the real problem is not that perpetrators are incapable of distinguishing between consent and nonconsent, but rather their failure to distinguish between legitimate consent and a form of a pseudo-consent I call Implicit Sexual Consent. Once a victim gives what the perpetrator takes to be a sign of compliance with this form of consent, she finds herself party to an irrevocable sexual contract. I maintain that the most effective means of combating the belief in this type of consent is for the law to modify its current conception of consent. In particular, I hold that in addition to consent, we ought to ensure that sexual partner take care to not cause each other harm. In short, sexual partners must treat each other with empathy