Oblique intent

Why the name? Well criminal law afficionados will recognise the phrase 'oblique intent' as referring to a problem of mens rea:can a person who intends to do x (such as setting fire to a building to scare the occupants) also be said to have an intention to kill if one of the occupants dies? This is a problem that has consumed an inordinate amount of time in the appeal courts and in the legal journals, and can be taken to represent a certain kind of approach to legal theory. My approach is intended to be more oblique to this mainstream approach, and thus to raise different kinds of questions and issues. Hence the name.

Thursday, 7 February 2013

On the wrong of rape

It is a common claim in criminal law theory that there are certain core wrongs, such as homicide or rape, which are recognized as such by all legal systems. I am, in general, sceptical about these kind of claims: even if we were to concede the general point – say, that homicide and rape are crimes in all legal systems at all times – this surely does not tell very much. If we look closer, we find that while, say, rape, might always have been a serious criminal offence, the underlying sense of what is wrong about rape and the way that it is criminalised (who is protected and what they are protected against) is quite different at different places and times. It seems, then, that the 'wrong' cannot be identified in isolation from some sense of the social function of the criminal law. 

From the manuscript of Bracton's
On the Laws and Customs of England
This can be illustrated with an outline of the history of rape in English law. The crime of rape in early medieval English law was an offence against sexual property – or the property of the father in the chastity (and hence marriageable value) of his daughter. Consequently the law distinguished between the rape of different types of women, treating the rape of a virgin as the most serious. This had implications for the punishment of the crime. The rapist of a virgin, as Bracton (writing in the thirteenth century) explains, was to be punished by mutilation - castration and blinding. But:
“Punishment of this kind does not follow in the case of every woman, though she has been forcibly ravished, but some other punishment does follow, according as she is married or a widow living a respectable life, a nun or a matron, a recognised concubine or a prostitute plying her trade without discrimination of person”
Sir Matthew Hale
By the eighteenth century, rape was seen as a crime of violence which might be committed against all women, and all rapists should be punished equally. For Blackstone, writing in 1769, rape is the “carnal knowledge of a woman forcibly and against her will”. However, the consequence of this definition - aimed at protecting women from sexual violence - was that non-consensual intercourse fell outwith the scope of the crime. And notoriously this was understood as meaning that a man could not rape his wife because consent was deemed to have been given on marriage. In the words of Sir Matthew Hale:
“for by their mutual matrimonial consent and contract the wife hath given up herself in this kind unto her husband, which she cannot retract”
In many jurisdictions the crime of rape is now conceived of as an offence against sexual autonomy – the choice of the (ungendered) individual to decide when and with whom to have sexual intercourse. This has the consequence of making consent (or its absence) the central element in the definition of the crime and broadening the definition of the actus reus (to include oral and anal penetration). Rape is no longer conceived of as a crime exclusively against women as it is the wrong against sexual autonomy which is central, rather than the gender or status of the victim. 

In each case then we can see that while rape is regarded as a serious wrong, the nature of the underlying wrong is conceived of differently. This surely illustrates the central point that the wrong cannot be understood as an intrinsic quality of the conduct, but is linked to the aims of the criminal law which in turn shapes the scope of the legal protection.

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