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The Philosophy of Criminal LawSelected Essays$
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Douglas Husak

Print publication date: 2010

Print ISBN-13: 9780199585038

Published to Oxford Scholarship Online: May 2010

DOI: 10.1093/acprof:oso/9780199585038.001.0001

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Rapes Without Rapists: Consent and Reasonable Mistake *

Rapes Without Rapists: Consent and Reasonable Mistake *

Chapter:
(p.233) 9 Rapes Without Rapists: Consent and Reasonable Mistake*
Source:
The Philosophy of Criminal Law
Author(s):

Douglas Husak (Contributor Webpage)

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780199585038.003.0010

Since a mistaken belief about consent should be a defence to rape when it is reasonable, it is important to identify the kind of evidence that is helpful in distinguishing reasonable from unreasonable mistakes about consent to sex. This chapter argues that an adequate theory of whether a mistake about consent is reasonable depends on empirical evidence about how consent to sexual relations is expressed even when no mistake is made. It examines this evidence and contends (contrary to many rape law reformers) that the author's views about the conditions under which mistakes about consent to sex are reasonable are not unfair to women in general or to rape victims in particular.

Keywords:   rape, mens rea, reasonable, defence, consent, mistake, convention

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