Honest Beliefs, Credible Lies, and Culpable Awareness: Rhetoric, Inequality, and Mens Rea in Sexual Assault

Abstract

The exculpatory rhetorical power of the term "honest belief" continues to invite reliance on the bare credibility of belief in consent to determine culpability in sexual assault. In law, however, only a comprehensive analysis of mens rea, including an examination of the material facts and circumstances of which the accused was aware, demonstrates whether a "belief" in consent was or was not reckless or wilfully blind. An accused's "honest belief" routinely begs this question, leading to a truncated analysis of criminal responsibility, and error. The problem illustrates how easily old rhetoric perpetuates assumptions that no longer have a place in Canadian law.

Keywords: criminal responsibility, sexual assault, consent, mens rea, recklessness, wilful blindness, legal rhetoric

JEL Classification: K14