Criminal Law Conversations
With so much good to say about Michelle Anderson's proposal on rape law reform one hesitates to offer any criticism at all. My pause in wholeheartedly embracing her idea stems mostly from hesitation about its implementation.
Anderson's proposal presents practical advantages over the current regime. Using prevailing definitions of rape, countless disputes arise over the meaning and nature ofboth core components, force and consent. Moreover, in the typical scenario, we need to know not only whether a woman consented, but also whether a man was cognizant in some fashion of her nonconsent, resulting in difficult contests regarding mens rea. By making consent turn on a particular kind of overt conversation, a defendant's subjective belief about consent becomes much less important.
Negotiating Sex: Would it Work? Criminal Law Conversations
Available at: http://scholarlycommons.law.hofstra.edu/faculty_scholarship/658