Baron

In Gender Issues in the Criminal Law, Baron argues that “there are aspects of current sexual assault law that are cause for concern” (22) and they need to be brought to light as to how these aspects could harm the victims. Baron breaks this section up into five different parts: Consent; Nonconsent, Force, and resistance; Whether or not the force requirement should be abolished; what should count as nonconsent; and mistakes and culpability. She does admit that there was not enough room to discuss other aspects of this, including statutory rape, but that could arguably be a different ballpark from what was discussed in section IV already. Baron argues that the mainstream view on consent is “yes means yes” and “no means no.” However, what makes it so difficult, and certainly contributes such low prosecution and conviction rates because there could be so many reasons why someone is saying “yes.” Some of these reasons might be coercion or physical threat. If someone were to say they were going to kill them, then their life is in danger and the victims would be helpless and would not have any other choice but to “consent” in order for them to live. Because of these reasons, there have been more campaigns against rape that involve describing consent as an enthusiastic yes. This, I believe, began to be developed in order to take care of the mens rea question. The term mens rea refers to criminal intent, or the state of mind indicating culpability. “The defendant lacks the necessary mens rea if he thought she was consenting” (28) would be an example of how someone might frame the situation in order to avoid being convicted. By going along with the “enthusiastic yes” would be taking the better safe than sorry route. However, this still puts the victim in a potentially dangerous situation, especially if the victim believed it to be “pointless to refuse and dangerous even to appear reluctant.” This reasoning is not that uncommon, especially since women have been killed for less. One very obvious objection to this would be that women could enthusiastically consent and then lie about being in a dangerous situation. Additionally, there might also be the objection that if someone is drunk, and they enthusiastically consent, it would still be enthusiastic consent. However, while it is important to recognize that there are people who lie, there are an astronomically larger number of women who do not receive the justice they deserve in terms of conviction rates. I also think it is important to note, while this was not mentioned in the article about criminal law, that more often than not, people are assaulted by acquaintances or “friends” whom they have known before the assault. All of these aspects that should be taken into consideration are beyond what happens inside the courthouse. People may say the law is the law, but it is clear that with judges, they are not without their biases either. This can be seen at the Supreme Court level, so therefore it can be seen at any level of the law.