To the editor:
Concerning the law of rape, it seems to me that we as a nation need to return to first principles, while yet fully acknowledging what we have learned in the recent past from the women’s equality movement, from the “Me, Too” movement, and others who advocate for the victims of sexual assault.
The first thing is to examine the federal law of rape — both as to uniformed military personnel, and for civilians under federal jurisdiction. We need to agree on a federal rape statute that can serve as a model, or a template for the 50 states to use.
Is it not positively beyond absurdity for a nation to have more than 50 criminal statutes for the crime of rape depending on the geographic location where the assault takes place?
The model law of rape should consider the matter of the intoxication of the victim — whether voluntary or involuntary, whether de minimis or substantial — only in regard to the essential element of consent.
One thing that is crucial to the element of consent is the capacity of the victim to give or withhold consent.
Further to the matter of consent, the law should make it clear as day that consent must in each instance be affirmative consent, and must, in each instance, be specific to the act consented to.
The law should set out what constitutes an admissible or an inadmissible defense to the crime of rape, as well as defining aggravating and ameliorating circumstances in certain cases.
There should be a definition of various degrees of rape, and of sexual abuse, up to the felonious crime of aggravated rape in the first degree, which should be a felony. Aggravating circumstances for a rape would presumably include acts of abduction, or forced detention, or torture of the victim in the commission of the felony.
Furthermore, while the absence of affirmative consent creates the (possibly refutable) presumption, prima facie, of the crime of rape. Nevertheless, the felonious crime of rape may be charged, and is indictable, even in the face of the victim’s affirmative, conscious consent when there is constructive absence of capacity to give consent on the part of the victim — for example, when the victim lacks capacity to give consent.
The matter of capacity to give consent, and the matter of deciding whether affirmative and specific consent were freely, voluntarily, and consciously given are questions of fact, to be determined by the finder of fact — either judge or jury — at trial.
In a hypothetical case where there is or appears to be ambiguity as to the victim’s consent, there arises, or may arise, the presumption of an absence of affirmative and specific consent on the part of the victim due to lack of capacity to give consent. Nevertheless, the presumption of absence of consent is rebuttable by the defense based on the production of evidence.
In any case, at trial, the guilt of the defendant who is charged with rape would need to be established “beyond a reasonable doubt” in order to convict. The procedures of due process of law must control.
Philosophically speaking, we the people — and, particularly, we the common, working people — should be clear as to what exactly we expect a rape statute, or any other criminal statute, to accomplish. Are we seeking retributive justice? Deterrence? Restorative justice? Or all of the above? And perhaps other objectives as well?
These matters can — and should be — at least partly addressed in sentencing guidelines.
As colleges and universities come back into session for the fall semester, we also need to address the matter of consent training for students, workers and other members of the academic community, whether living on- or off-campus.