Quote:
Originally Posted by Guile
Also, to commit a crime, you have to be in a "criminal state of mind", which essentially means you must be knowlingly commiting a crime, which is why insanity is a defense, if his intent was "I'm going to have sex with her", it's not rape, if it's "She won't let me, so I'll make her", it's rape.
|
I can see what you're getting at, but I would say that the first would only actually qualify as not being a
mens rea for rape if it was "I'm going to have sex with her
if she wants it as well". As it currently stands, it could be interpreted as "I'm going to have sex with her whether she likes it or not" - it isn't specifically said, and the second is definitely more clear-cut in that respect, but if you combine the first with the
actus reus of carrying on regardless of consent then that still meets the legal threshold. It is all down to interpretation but then all law is based on interpretation at the end of the day. Also as Rachel points out silence is not consent (although case law has not been able to determine whether consent must therefore be express or can be implied), but it is more of a situational issue. I would agree with the broader point you are making however.