Marcia Baron

Bennett Brady

PHI WGS 197

November 1, 2016

Marcia Baron

            Recently there have been many improvements to rape laws. Rape laws now restrict the admissibility of evidence that the complaint was promiscuous, the corroboration requirement is gone, and there is no longer a requirement that the complainant resisted “to the utmost.” Even though there have been improvements to rape law many problems still exist. For example, prosecution and conviction rates for rapes still remain extremely low.

            Baron defines rape as nonconsensual sex. Baron also says that four of the remaining problems with rape laws are the definitions of sexual consent, sexual nonconsent, the force requirement, and what mens rea should be required for rape. For the purposes of rape law Baron defines consent as something one feels (mental state model), and something one does (performative model). She argues that the only thing that matters when it comes to defining consent for rape is the performative model. She said if someone says no that means no, and even if they desire something else. For example, someone could be attracted to someone they work with, and want sexual relations with this person but they are married. If the other person wants to have sex and asks and the married person says no even though they have thought about it since they said no that means they are not giving their consent. Baron then moves on to defining sexual nonconsent. She says sexual nonconsent is when one party says no, or in the absence of affirmative consent. Another issue Baron addresses is whether or not the force requirement should be abolished some people think that sometimes its hard to tell whether or not someone is consenting to sex, and that it should only be classified as rape if person can prove that they were forced into it. Another issue that still exists with rape laws is the mens Rea question and whether someone should still be guilty of rape if they mistakenly thought someone was consenting. Baron suggests that it would be very hard for there to be a reasonable mistake in this situation. She also fears that this will let a lot of people go free in situations when it was clear there was no consent so she believes that the courts should be very tough in deciding whether or not it was a reasonable mistake.

            One of Barons big suggestions is that the law of rape should eliminate the force requirement altogether. Many people would argue that this is a bad suggestion because then lots of people could claim rape after a sexual encounter, and lots of people could get sent to jail afterword’s because the other person didn’t make their nonconsent clear. People would also argue that rape is only rape if someone can prove they were forced or threatened with force otherwise they could have easily walked away if they really didn’t want it to happen. I agree with Baron that the force requirement should be eliminated. So many people are constantly not being convicted of rape because women can’t show proof that they were forced into a sexual encounter even though they expressed it was something they didn’t want. Just because there wasn’t threats or physical harm doesn’t make it a mutual agreement between two people, and it lets people think that its only rape if someone was hurt or threatened to be hurt. Rape can happen in a variety of situations, and force is not necessary I agree with Baron that it should be eliminated because a lot of criminals are being set free, and people are not aware of all of the different types of rape.