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http://ssrn.com/abstract=637541
 
 

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Some Common Confusions About Consent in Rape Cases


Peter K. Westen


University of Michigan Law School


Ohio State Journal of Criminal Law, Vol. 2, No. 1, pp. 332-359, Fall 2004

Abstract:     
Consent to sex matters, because it can transform coitus from being among the most heinous of criminal offenses into sex that is of no concern at all to the criminal law. Unfortunately, the normative task of making the law of rape more just is commonly impaired by conceptual confusion about what consent means. Consent is both a single concept in law and a multitude of opposing and cross-cutting conceptions of which courts and commentators tend to be only dimly aware. Thus, consent can be a mental state on a woman's part, an expression by her, or both; it can consist of facts about a woman's mental state or expressive conduct that do not necessarily constitute a defense to rape or consist only such facts as do constitute a defense to rape; and it can consist of facts about a woman's mental state or expressive conduct or a legal fiction of such facts. In so far as we are unaware of the ways in which this conceptual framework structures the way we think about consent, we risk confusing ourselves and others in undertaking to make the law of rape more just. Some examples are (1) confusion as to whether the defense of consent ought to be deemed to consist of a mental state on a woman's part or an expression; (2) confusion about the relationship between consent to sexual intercourse and resistance to it; and (3) confusion about the relationship between force and non-consent.

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Date posted: December 20, 2004  

Suggested Citation

Westen, Peter K., Some Common Confusions About Consent in Rape Cases. Ohio State Journal of Criminal Law, Vol. 2, No. 1, pp. 332-359, Fall 2004. Available at SSRN: http://ssrn.com/abstract=637541

Contact Information

Peter K. Westen (Contact Author)
University of Michigan Law School ( email )
625 South State Street
115 Legal Research Building
Ann Arbor, MI 48109-1215
United States
734-647-9134 (Phone)
734-665-3435 (Fax)

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