I Thought She Consented

Shanty Hernandez

                                                                                                                       

                                                I Thought She Consented

            In I Thought She Consented, Marcia Baron talks about rape and how it only should be considered as non-consent, rape should not be considered force. “My view is that force should not be part of the legal definition of rape, and thus that the prosecution task, with respect to the act element, should only prove nonconsensual sex” (Baron 2). In some states, if you can’t prove force then you can’t prove rape. In cases, people can’t prove that they were physically forced. For example, if a person is intoxicated and they are not able to say how they feel but the assaulter did not physically push them. This is still considered rape because they person did not explicitly say “yes”. I completely agree with Marcia Baron because not every sexual assault case is black and white. With some people, it is obvious that they were raped because they were physically forced to preform sexual acts. With other cases, a person did not yes so the other automatically implied that they said yes. Both of these are considered sexual assault because one person did not consent in both situations.

            Baron describes two types of conviction: actus reus and mens rea. Mens rea is considered a guilty mind. People do this for purpose (which a person wants to harm another), knowledge (a person knows they are harming), recklessness (there is a disregard of harming the person), and negligence (the person is not aware there is a risk, but they should have known). The difference between recklessness and negligence is that with recklessness the person knows they are harming, but they choose to ignore. Negligence is that they are not aware that they are causing harm even though they should be. One might argue that negligence should not be a way to convict someone because a person might genuinely not know that they are causing harm. For example, a guy may believe that when a girl says “no” that she is just playing around, and she wants you to continue. I would argue that that is not an excuse, and no one should risk putting someone else in danger for their benefit. When a “no” is said, there is no justifying or changing the meaning. For example, say a person is driving and runs over a dog on accident because they did not see them. The driver still has to face consequences even though they did not know they were going to hit the dog.

            Michael Kimmel and Gloria Steinem would agree with Marcia Baron because, like saying “yes” and “no”, there is a gray area on who should be persecuted and why. It is harder to put the blame on someone that genuinely did not know that they were harming a person. Nonetheless, it is still considered sexual assault because there was no consent. Just like if a person did not explicitly say “no” does not mean they consented.  If society is more knowledgeable on the different kinds of assaults people will be more aware of their actions.