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View Diary: Beyond A Reasonable Doubt: Applying The Wrong Legal Standard To Establishing Consent in Rape Case (167 comments)

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  •  Rape (0+ / 0-)

    there is a fundamental flaw in this analysis probably because the writer has no experience in the criminal courts or with rape prosecutions or with how crime is defined. Rape is a crime that doesn't carry a specific mens rea or intent to commit the crime. Instead it has the element of lack of consent. If the crime required mens rea or specific intent to rape it could be defended on mistake of fact (I thought she consented), lack of intent to rape, or many other avenues of defense. But instead it is predicated on lack of consent. That puts the mental element into the head of the alleged victim instead of the defendant. This shifting of the intent element was done to make it easier to convict rather than more difficult. If we re-engineer rape statutes and put the mental intent back into the mind of the defendant there will be less rather than more convictions. In addition this article as many others just repeats statistics that are inaccurate (25% of all women will be raped) and not based on any legitimate examination.

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