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4.2.12
WC: 191694

This decision, disallowing even the most reasonable mistakes of fact in rape cases, opens up the possibility of some very unjust results. To illustrate this, let’s go back to the filming of the movie, Deep Throat, discussed in an earlier chapter.

Harry Reems had sex on camera with Linda Lovelace. Anyone watching the film81 can see that she is consenting, both verbally and by her unambiguous actions. But it now turns out, at least according to a book she wrote, that her apparent consent wasn’t real, that she was compelled to pretend she was consenting by her husband’s threats to kill her unless she went forward with her starring role in the movie Deep Throat. Under the extreme view expressed by some radical feminists and accepted by the Massachusetts Appellate Court, Reems could be guilty of rape even though his mistake of fact about her consent was entirely reasonable.

Or consider the following case I discuss in class. Among the group of American citizens in California who come from the Hmong tribes in the mountains of Cambodia, there is a traditional wedding ceremony for arranged marriages. The groom is supposed to go to the home of the bride, where the father of the bride greets him at the door. The groom pushes the father aside, finds the bride, and carries her, screaming and yelling, from her parents’ abode. He is supposed to act like a young warrior, and she like a young virgin who wants to retain her status. It’s all playacting, and part of the traditional wedding ceremony. In the case I teach, the young woman didn’t actually want to go through with the marriage, and her resistance was not playacting; it was real. But there is no reason that the groom would know this, so he took the bride home to his house, and over her “resistance”, which he believed was feigned, he consummated the arranged marriage. She then ran away and reported the rape to the police, who arrested the young man. I asked my students how a case like this should be decided.

The class is generally divided, some argue that no always means no, even in the context of a traditional marriage ritual in which no is supposed to mean yes. Others argue that it would be unfair to impose our values on a minority that has its own culture and traditions.

Another case that raised similar issues arose in the context of a college friendship that turned ugly.

81 I have never seen the entire film (see pages __ supra), but during the preview of a documentary about the film, I saw excerpts from it.

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