I Thought She Consented

Marcia Baron’s “I Thought She Consented” is thoughtfully and purposefully titled with a quote that invokes many different types of emotions, as well as lets the reader know what her piece will discuss. To begin, Baron discusses the two main components of almost any conviction, which is the act element (actus reus), and the mental element (mens rea). In terms of rape, Baron states that in actus rea, some states require rape to e both non-consensual and forceful, while other states, it is just non consensual only. Baron mostly focuses on the mens rea issue at hand, but certainly makes it a point to discuss the actus rea issue as well. The discussion of the mens rea issue at hand is not unfamiliar since it is something she also talks about in Gender Issues in the Criminal Law. Specifically, the issue she is addressing “whether a mistake should have to be reasonable to constitute a complete defense to a rape charge” (9) and how it comes from a famous English case. This particular case involves the husband and three of his friends. While he firmly believed she was consenting despite the fact that she “screamed to her children to call the police,” (10) he was only charged with aiding and abetting since rape of one’s wife did not count as rape at the time. This situation is interesting in a very disturbing way because this belief and the sanctioning of this belief through law is something that abusive partners certainly take advantage of. For domestic abuse victims, sexual violence is not uncommon, and if they were to tell other people, there is a chance that they might not believe them because how could one not want to have sex with someone they’re married to? However, consent transcends societal constructs, including and especially marriage. After discussing the details of the case, Baron delves into why one might find the outcome disturbing. The “I believed she consented” argument “provides an easy defense to a very serious case.” (11) Immediately after, she offers a possible objection from the opposition saying the argument is not an easy defense at all because he has to convince the jurors “he really did believe this.” (11) I have no doubt in my mind that there are men out there who believe what they want to believe. This was even seen in the documentary when a college student was interviewed and he asked, “just because she says no and you still have sex, does that make you a rapist?” I do not think he was intentionally being daft, but rather he genuinely believed that was a valid thought process. Unfortunately, this holds true for more people than just him. In fact, a lot of surveys, if they outright ask if you have ever raped someone before, the vast majority will say no. But if the question gets reworded, the percentage of people who say yes becomes astronomically higher. Moreover, the statistics show how little jurors and judges believe the victims, and this can be seen through the slew of popular cases in the past few years, Brock Turner, Emma Sulkowicz, just to name a few.