Tuesday, November 15, 2016
When people seek to reform rape law, the focus is on the actus reus — either abandoning the force element or redefining consent. This Article argues that both approaches overlook a critical opportunity for reform, which is the crime’s mens rea. Knowledge, or general intent, is the most common mens rea in rape offenses. The problem with this mental state is that proving what a defendant knew is one of the hardest parts of any criminal prosecution. Although scholars have explored reckless or negligent standards, this Article proposes that states adopt the mens rea of malice — a callous indifference towards the risk of whether the defendant had secured the consent of his sexual partner. If someone shoots a gun in a crowd and kills someone, that person had no knowledge or intent to kill. But the shooter would be liable for murder under the mens rea of malice because the person acted with callous disregard to the objective risk of harm that her conduct involved. When imported to rape, malice then effectively captures what is the precise social wrong in having unwanted sex — it is a defendant acting with callous indifference over whether his or her actions present an objective risk that he or she engaged in sexual activity without the consent of his or her partner.