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NCJRS Abstract

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NCJ Number: 135010 Find in a Library
Title: Reckless and Inconsiderate Rape
Journal: Criminal Law Review  Dated:(1991)  Pages:172-179
Author(s): S Gardner
Date Published: 1991
Page Count: 8
Type: Legislation/Policy Analysis
Format: Article
Language: English
Country: United Kingdom
Annotation: Most rape cases contain reference to whether the defendant "cared" about the woman's wishes, and this concept provides a basis for the development of criminal liability where the man mistakenly believed in the woman's consent.
Abstract: In the Morgan case, the English House of Lords decided that the defendant was not guilty because he believed the woman consented. After this case, the law of rape was put into statutory form by the Sexual Offences (Amendment) Act of 1976 which stated that the required mens rea as to a woman's nonconsent was intention or recklessness. Rape liability is related to the requirement that a man regard the desires and consent of the woman; the fault element must lie in a culpable failure to meet this expectation. Such a requirement involves a realization of nonconsent, failure to think, or mistaken belief in consent. That the woman may not consent is a culpable failure to regard her wishes. The disparity in a case where the man fails to think but is not inconsiderate seems theoretical rather than real. With regard to mistaken belief in consent, many argue that it is possible for a man to determine if the woman is consenting with minimal effort. The idea of "unreasonable mistakes" and the importance of attitudes in determining rape liability are discussed. 40 footnotes
Main Term(s): Rape
Index Term(s): Crime in foreign countries; Criminal responsibility; England; Foreign laws
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