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4.2.12
WC: 191694

Rashomon Rape Cases

In the great Japanese film, Rashomon, a horrible crime is presented through the very different perspectives of several participants. In some rape cases, a similar Rashomon perspective is sometimes at work. In the Mike Tyson case, for example, it is possible (though unlikely in my view) that Desiree Washington did not intend to consent to sex but that Mike Tyson reasonably believed—based on her “groupie-like” actions and statements—that she did. What should the law be in such situations?

Under American law, if a person makes a reasonable mistake of fact which leads to the commission of a crime, he is generally not guilty. For example, if a person walking down the street sees another person coming at him with a gun about to pull the trigger, and he shoots first and kills his assailant, he is not guilty, even if the “assailant” turns out to be an actor in a movie holding a gun that shot blanks. Since the defendant reasonably, though mistakenly believed, that his life was in danger, his reasonable mistake of fact constituted a complete defense to a murder charge. A crime requires both a criminal act and a criminal intent, and if the defendant reasonably believes that facts, as he saw them, made what he was doing permissible under the law, then he does not have a guilty mind. A mistake about law, on the other hand, is not a defense, since everybody is presumed to know the law. (This latter point led an English wag to comment that “all Englishmen are presumed to know the law, except Her Majesty’s judges, who have a court of appeals above them to set them right.”)

In recent years, however, there has been a movement to deny defendants in rape cases the right to raise the defense of reasonable mistake of fact, especially when it comes to whether the woman consented. No means no, and no man should be allowed to believe that no might mean yes or even maybe. (There is the anachronistic joke about the difference between a diplomat and a lady: When the diplomat means maybe, he says yes. When he means no, he says maybe. A diplomat never says no, for to say no would mean he was not a diplomat. When a lady says no, she means maybe. When she says maybe, she means yes. A lady never says yes, for to say yes would mean she was not a lady.)

The law is correct in demanding that a man understand no to mean no. He may subjectively believe that no means maybe when it comes to him, but such a belief is unreasonable as a matter of law. In some situations, however, the woman does not say no. Nor does she say yes. Nor does she even say maybe. (There was a song made famous by Ella Fitzgerald entitled “She didn’t say yes. She didn’t say no.” The lyrics continued: “She didn’t say stay, she didn’t say go…clearly she took one sly little look and something awoke and smiled inside. Her heart began beating wild inside. So what did she do? I leave it to you. She did what you’d do too…she didn’t say yes. She didn’t say no. She wanted to stay but knew she should go. She wasn’t so sure that he’d be good. She wasn’t even sure that she’d be good…above her, sweet love was beckoning and yet she knew there’d be a reckoning….”) In real life, women often convey their intentions via ambiguous verbal and physical cues. In such situations, it is morally wrong, in my view, for a man to assume consent, but it may also be legally wrong for the law to punish such immoral behavior

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