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Re: Rape and mens rea

By: DigSpace in ALEA | Recommend this post (0)
Thu, 30 Aug 12 2:21 AM | 67 view(s)
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Msg. 09682 of 54959
(This msg. is a reply to 09681 by Cactus Flower)

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You comments are sensible. You will forgive me if my knee jerk reaction is and likely always will be to disproportional protect the woman.

I think that no amount of this or that will change certain physical facts, and in the face of those facts we require bias ... significant judicial bias.

I believe significant judicial bias to be well considered.

I believe that in the face of broad real historical circumstances in the US, that certain quotas are required, some based on race.

In both of these I expect push-back. On both of these I may be wrong (either in desired effect or otherwise). In both I fully recognize that in some applications error will fall wrongfully on the innocent.

As a matter of government, the administration of large populations, on these few matters I am inclined to accept error. On other matters, I am inclined to allow the 10th to take over, this is my business, you go away.



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The above is a reply to the following message:
Rape and mens rea
By: Cactus Flower
in ALEA
Thu, 30 Aug 12 1:04 AM
Msg. 09681 of 54959

Okay - this is the missing piece of the post-consent jigsaw for me.

For rape to occur, the man must have rape in mind. He must actually believe the woman has withdrawn her consent to sexual activity and then continue to have sex with her regardless of her wishes.

Otherwise, as state of mind is intrinsic to crime, a crime has not occurred. At least in law. I think. Actus reus is not enough. Mens rea is necessary for a crime.

So there is a burden upon a woman to make the withdrawal of her consent clear. Silence won't do once consent is provided.

It's a bit more complicated than I thought. But practically-speaking, much the same in almost all circumstances. But there's a little area of difficulty in there.


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