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Date Rape, Social Convention, and Reasonable Mistakes

Author(s): Douglas N. Husak and George C. Thomas III


Source: Law and Philosophy, Vol. 11, No. 1/2, Philosophical Issues in Rape Law (1992), pp.
95-126
Published by: Springer
Stable URL: http://www.jstor.org/stable/3504905
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DOUGLAS N. HUSAK AND GEORGE C. THOMAS III

DATE RAPE, SOCIAL CONVENTION,


AND REASONABLE MISTAKES

How is it possible for a man to make a mistake of


a women consents to intercourse? Initially, th
implausible. While mistakes of fact surely occur i
sexual intercourse has two qualities that distingui
these situations. First, in the typical situation,
opportunity to make known her views about whe
engage in sexual intercourse. Second, sexual interc
about which a person is unlikely to hold a casual o
easily make a mistake about whether his compani
the movies or go out to eat, but it seems unlikely
a mistake about whether she is withholding consent to
Nonetheless, most jurisdictions permit rape defen
the ground that they believed the victim consente
Our paper explores the question of how mistakes o
can occur and how they should affect liability
contend that mistakes about consent should function as a defense to a
charge of rape when they are reasonable. Our central thesis is that
social conventions are crucial in distinguishing between reasonable and
unreasonable beliefs about consent. The law should not apply criteria
of reasonableness about a belief in consent that ignore the means by
which women actually express their agreements to have sex in the real
world. We conclude that these conventions make possible reasonable
mistakes about consent.

I. RAPE, MISTAKE AND MENS REA

Most crimes require proof of the actor's mens rea (guilty

' We would like to thank David Weis, Stephen Schulhofer, Dorothy


Wendy Pollack, Shaun Nichols, Lynn Miller, Donna Mancuso, Steven K

Law and Philosophy 11: 95-126, 1992.


? 1992 KluwerAcademic Publishers. Printed in the Netherlands.

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96 Douglas N. Husak and George C. Thomas III

George Fletcher notes that "no term [is] fraught with greater ambi-
guity",2 but for our purposes mens rea means, roughly, that the actor
must be at fault for his conduct.3 "Fault" is not a precise concept; it
can range from having a specific purpose in mind to being unaware of
some circumstance about which the law expects awareness. The type
of fault required is sometimes specified in the offense definition; it is
sometimes implicit in the proscribed conduct; and it is sometimes
added by courts to avoid imposing criminal penalties on a person who
acted without fault.
Mistakes of fact are often relevant to fault, but the precise relation-
ship depends on the type of fault required by the criminal offense.
Some offenses, often called "specific intent" crimes, require proof of a
particular mental state. Larceny, for example, requires an intent to
permanently deprive the property owner of possession. If P takes Q's
umbrella, mistakenly thinking it is his, P cannot have the intent to
permanently deprive Q of her property. P would lack this intent
whether or not anyone else would have made that mistake - that is,
whether or not his mistake was reasonable.
But the defense of mistake of fact has traditionally been more
narrowly circumscribed when the criminal offense does not require a
particular mental state. Often unhelpfully called "general intent"
crimes,4 these offenses typically permit only reasonable mistakes of fact
to serve as a defense. In effect, courts have decided that if an actor
should have known of the relevant conditions that made his act harm-
ful, he should be punished as if he knew of these conditions. But if he
was reasonably unaware of these conditions, then he is not at fault for
the harm. This standard mirrors the tort law standard of negligence.

Howell, Allan Horwitz and Frances Egan for helpful comments on earlier ver-
sions of this paper. Some crimes are "strict liability" offenses that do not require
proof of any mens rea. See, e.g., Douglas Husak, Philosophy of Criminal Law
(Totowa, NJ.: Rowman and Littlefield, 1987), pp. 136-41.
2 George Fletcher, Rethinking Criminal Law (Boston: Little, Brown and Co.,
1978), p. 398.
3 See Wayne LaFave and Austin Scott, Criminal Law (St. Paul: West Publishing
Co., 1986), p. 212.
4 This usage is unhelpful because it has little meaning other than to distinguish
these offenses from specific intent crimes. See LaFave and Scott, Id., pp. 223-25.

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Date Rape, Social Convention, and Reasonable Mistakes 97

For example, one definition of battery at common law is "an offen-


sive touching".5 This verbal formulation does not require a particular
mental state, and none seems implicit. It is possible that every offen-
sive touching would be a battery, but this result seems excessively
harsh in those cases in which P believed that Q would not object. The
compromise that developed is that P is not guilty if his mistaken belief
in Q's willingness was reasonable.6 P has a good chance of prevailing
on this claim if he kisses Q good-night after a date, assuming that Q
had not indicated her unwillingness to be kissed.7 But his claim would
be less likely to succeed if he kisses a stranger without warning.
Perhaps P was at a graduation party and honestly believed that any
woman at the party would be pleased to receive his kiss. However, if
this belief was unreasonable, P can be punished for not correctly
perceiving the attitude of the stranger.
Many have criticized the common law for permitting a criminal
conviction when the mistaken actor was merely negligent about
whether the touching was offensive.8 Why should P be punished at all
for kissing a woman he honestly thought would welcome his kiss? His
act may be a tort, for which Q can sue him for damages, but criminal
punishment has typically required a greater degree of fault than tort
liability.9 In any event, P is clearly less blameworthy than R, who
kissed a woman after she told him that she did not want to be kissed.
Yet the common law would treat P and R as equally culpable.
Because rape requires proof that the intercourse was without the

5 See LaFave and Scott, Id., p. 685.


6 See, e.g., Chambless v. State, 79 S.W. 577, 578 (Tex. Crim. App. 1904) (whether
"appellant reasonably believed, under the circumstances, that prosecutrix would
allow him to kiss her"). See also Stripling v. State, 80 S.W. 376, 377 (Tex. Crim.
App. 1904) (whether defendant "had probable grounds to believe, and did
believe, that said trying to kiss her would not be objectionable to her").
7 See Chambless v. State, 79 S.W. at 578 (noting defendant's claim strengthened
by failure of prosecutrix to "command him to desist").
8 See Jerome Hall, 'Negligent Behavior Should Be Excluded from Penal Lia-
bility', Columbia Law Review 63 (1963): 632-44.
9 See Rollin Perkins and Ronald Boyce, Criminal Law (Mineola, N.Y.: The
Foundation Press, 1982), p. 157.

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98 Douglas N. Husak and George C. Thomas III

consent of the victim,10 the mistake-of-fact defense in a rape pro-


secution is almost always that the actor thought the victim had con-
sented.'1 But the appropriate fault standard to apply to these mistakes
is not free from doubt. Rape statutes seldom specify a level of fault,12
suggesting that rape is either an offense that implicitly requires a
particular type of fault, or a "general" intent crime that, typically,
requires only negligence about consent.
The House of Lords has held that rape implicitly requires a specific
mental state. The defendant in Regina v. Morganl3 was charged with
aiding and abetting the rape of his wife by three other men. The
victim testified that the men used force to subdue her, but the
defendants alleged that Morgan had assured them that she might
struggle because "she was 'kinky' and this was the only way she could
get 'turned on' ".14 Thus, their defense depended on their belief that
Mrs. Morgan had consented to the violent sexual acts. Although
unreasonable, the defendants' professed belief is not impossible.
The question before the House of Lords was whether an unreason-
able but honest mistake of fact about consent is a defense to rape. The
statute at issue provided simply: "It is a felony for a man to rape a
woman". Lord Hailsham reasoned that rape implicitly requires an
intention to commit non-consensual sexual intercourse. He argued
that an honest belief in consent negates the intent to have non-
consensual sexual intercourse, and that the reasonableness of that belief
is relevant only to the question of whether it was honestly held.1 A
majority of the Law Lords accepted Lord Hailsham's argument.l

l0 See 4 William Blackstone's Commentaries *210.


l It is highly unlikely that a defendant would be mistaken about whether he is
having intercourse.
12 See Sanford Kadish and Stephen Schulhofer, Criminal Law And Its Processes 5th
ed. (Boston: Little, Brown and Co., 1989), p. 257, note 1.
13 1975 All England Reports 3d 347 (House of Lords).
1 Id. at 355 (Lord Hailsham).
1 Id.at 361.
16 Nonetheless, the House of Lords dismissed the appeal on the ground that no
jury could have believed that the defendants actually were mistaken. Id. at 353
(Lord Cross).

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Date Rape, Social Convention, and Reasonable Mistakes 99

One difficulty with the Morgan standard is that it exempts from


criminal liability a defendant who is negligent about whether consent
has been given. Perhaps a negligent defendant should be punished for
his unreasonable mistake about consent, even though his culpability is
less than that of an actor who realizes that the woman may not be
consenting. Legislatures could create a less serious offense to punish
negligence about consent ("negligent sexual invasion"17 or "sexual
assault"18), but, in the absence of this kind of legislation, courts must
decide whether the negligent defendant should be punished for rape.
In contrast with the English approach, American courts usually
construe rape as a "general" intent offense. Thus, actors are liable for
harmful consequences when they are negligent, that is, when they
should have known of the relevant conditions that made their acts
harmful. If the actor's mistake about consent to have sex was unrea-
sonable - if he should have known she had not given consent - most
American courts hold him guilty of rape. For this reason, a mistake of
fact is a defense in rape prosecutions in most states only if it is reason-
able.

Deciding how to treat unreasonable mistakes about consent to have


sex is important not only for the fate of the negligent defendant. In
addition, this decision has a profound impact on what it is possible to
say about nonconsensual sex. Suppose that Lord Hailsham is correct in
Morgan that rape, by definition, requires an intention to have noncon-
sensual sex. If so, a man who lacks this intention has not committed a
rape. This conclusion is bound to strike many victims of noncon-
sensual sex as outrageous. How is it possible to say that a woman who
has been the victim of nonconsensual sex has not been raped? The
typical American approach may seem preferable. Most American
courts implicitly presume that nonconsensual sex is indeed rape,
although a man's reasonable mistake of fact about consent precludes

17 See Celia Wells, 'Swatting the Subjectivist Bug', The Criminal Law Review
(1982): 209-20, 213.
18 See Wis. Crim. Code sec. 940.225(3) (third-degree sexual assault defined as
"sexual intercourse with a person without that person's consent").

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100 Douglas N. Husak and George C. Thomas III

holding him criminally liable.19 This approach has the advantage of


distinguishing two questions: (1) has the victim been raped by the
defendant; and (2) should the defendant be held criminally liable for
his act?

However, other considerations seem to favor the English approach.


Rape is a very serious crime, with severe penalties. Other crimes of
comparable seriousness require a subjective awareness of the crucial
elements.20 Because the American approach permits a rape conviction
without evidence of subjective awareness of lack of consent, Morgan is
more in keeping with this general mens rea doctrine.
In any event, cases in which a defendant has made a sincere but
unreasonable mistake about consent are extremely rare. Evidence that
a belief about consent is unreasonable will almost always raise doubts
that a defendant actually held that belief.2 In addition, on virtually
any occasion in which the defendant's belief about consent is unrea-
sonable, the victim will have expressed her unwillingness to have sex
in one way or another. Her expression of nonconsent will lead almost
anyone to at least consciously consider the risk that his victim is not
consenting. A defendant who proceeds with sex after disregarding this
risk is not negligent, but reckless.22 Thus it is difficult to imagine a
case in which a jury can be persuaded that a defendant has made an
unreasonable mistake while unaware of the risk of this mistake.

19 See, e.g., People v. Mayberry, 15 Cal. 3d 143, 542 p. 2d 1337 (1975) (reasonable
mistake about consent is defense to rape prosecution). It may seem peculiar to
say that while a rape has occurred, no one is guilty. But excuses function this
way in criminal law; an insanity defense permits a jury to decide that a crime
occurred, but the defendant should be acquitted. The American approach toward
mistakes of fact about consent in rape cases seems to make mistakes roughly
analogous to excuses. For a discussion of some of the general theoretical issues in
making this distinction, see Fletcher, Rethinking Criminal Law, pp. 698-707.
2' In the Model Penal Code, for example, crimes of the same degree as rape
include manslaughter, aggravated assault, kidnapping, arson, burglary, robbery,
and forgery. None of these offenses can be committed with a negligent mens rea.
21 See supra fn. 16.
22 For example, E. M. Curley argues that the defendants in Morgan were reckless,
not negligent. See E. M. Curley, 'Excusing Rape', Philosophy & Public Affairs 5
(1976): 325-60, 348.

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Date Rape, Social Convention, and Reasonable Mistakes 101

For these reasons, the more interesting problem is not to decide


whether defendants who have made an unreasonable mistake about
consent should be liable for rape, but to understand how a mistake
about consent could be reasonable. Part of our strategy in attempting
to comprehend how a belief about consent could be reasonable is to
consider cases in which a man is not mistaken. Situations in which his
belief is false will probably share some important similarities with
situations in which his belief is true, at least when his belief is reason-
able. It seems unlikely that we can appreciate how reasonable misper-
ceptions occur without understanding how persons ever perceive
matters correctly. In our view, too much literature about the nature of
rape and how to avoid it neglects the related issue of how couples ever
manage to engage in consensual sex. It is as though we could under-
stand abnormal psychology without comprehending normalcy, or
could provide advice about how to avoid divorce without bothering to
examine successful marriages.

II. THE ROLE OF SOCIAL CONVENTIONS

Suppose that a man believes that a woman has giv


sexual activity. What counts as a good reason t
belief is reasonable? In this section, we will attem
role of social convention in answering this question.
It is useful to begin with the question of how o
reasonableness of a man's belief about consent
circumstances in which he is not mistaken. That consent has been

given hardly suffices to establish the reasonableness of the man's belief.


One can easily imagine circumstances in which the man's belief is
unreasonable, even though it turned out to be correct. For example,
suppose that the facts in Morgan23 were duplicated exactly, except that
the woman did in fact consent to sex. If the defendant's belief was
unreasonable when it was false, as in the actual facts of Morgan, there
is no reason to suppose that his belief would become reasonable on

23 See text accompanying supra fns. 13 & 14.

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102 Douglas N. Husak and George C. Thomas III

these same facts simply because it happened to be true. In such an


imaginary case, the defendant's belief that consent was present, although
correct, would be unreasonable. As this example shows, an account of
how a belief becomes reasonable should not place too much weight on
whether that belief happens to be true or false, since true beliefs, no
less than false beliefs, can be unreasonable.
Of course, an unreasonable belief that consent has been given
cannot give rise to criminal liability if that belief is true. The offense
of rape requires nonconsent; the principle of legality precludes convic-
tion of the "lucky defendant" whose belief in consent, however unrea-
sonable, happens to be true. The behavior of such a person may be less
than exemplary - the act of the defendant in our revision of Morgan
may be just as blameworthy as that of the actual defendants in Morgan
- but (for better or worse) this behavior is beyond the reach of the
criminal law. Thus the following question is important, even though it
would not arise in the context of a criminal prosecution: Suppose that
a man is challenged to explain how he came to believe that a woman
consented to sex who in fact did consent. Not just any kind of expla-
nation would indicate that his belief is reasonable. What kind of
explanation will suffice?
Perhaps progress in answering this question can be made by think-
ing about situations other than those involving sex in which people
formulate beliefs about the presence or absence of consent. A cab
driver believes that someone who enters his taxi agrees to pay for a
ride after the passenger says simply, "Take me to the airport". A waiter
believes that someone who sits in his restaurant agrees to pay for food
after the customer says simply, "I'll have the chicken sandwich". How
do the cab driver and waiter come to have these beliefs, and what
answers to this question indicate that their beliefs are reasonable?
It is crucial to realize that these questions cannot be resolved a
priori. No philosophical analyses of the nature of belief, consent, or
reasonableness will suffice to answer them. Nothing about the be-
havior of the passenger or the customer inevitably requires that the
driver or waiter will formulate a belief about their consent. And no
conceptual analysis will demonstrate that any beliefs they formulate
are reasonable or unreasonable. Instead, the answers to these questions

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Date Rape, Social Convention, and Reasonable Mistakes 103

are dependent on empirical data. Not just any empirical data will do.
If the driver or waiter came to formulate their beliefs about the
consent of the passenger or customer by consulting tea leaves, their
beliefs would be unreasonable, even if they happen to be true. What
empirical data can support the judgment that the beliefs of the driver
and waiter are reasonable?
The empirical data on which the answers to these questions depend
are data about social conventions. A social convention is a societal
"norm which there is some presumption that one ought to conform
to".24 It is clear that the taxi driver would appeal to a convention in
explaining why he believes that a passenger expresses his consent to
pay for a ride simply by entering a taxi and being taken to the
destination he requests. If the driver is pressed about why he has this
belief, he will probably say something like: "That's just the way things
are. That's how passengers express their agreements to pay. I've been
driving for years, and I know how these things are done around here".
In other words, his answer cites a social convention. This social
convention helps to establish the reasonableness of his belief.
The taxi driver could be made to appreciate that the social conven-
tion he cites might be very different from what he understands it to
be here and now. Conventions can change over time, and the conven-
tions of other societies need not correspond to our own. Perhaps there
are times and places where a person does not express an agreement to
pay for a meal simply by asking for a particular selection on a menu.
Clearly, persons do not express an agreement to pay for every service
they request. If one person approaches another on a street, pulls out a
cigarette and asks for a match, anyone who lights his cigarette and
expects to be paid for his effort misunderstands the social convention.
A belief that payment is due under these circumstances would be
unreasonable.
Exactly how a social convention helps to establish that a belief is
reasonable is somewhat mysterious. Conventions are comprised of

24 See David Lewis, Convention (Cambridge: Harvard University Press, 1969),


p. 99.

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104 Douglas N. Husak and George C. Thomas III

facts, but conclusions about reasonableness are at least partly judg-


ments of value. There is a deep philosophical problem in understand-
ing how a matter of fact can support a conclusion of value. However
this mystery is solved, that a convention can help to establish the
reasonableness of a belief seems plausible. Conventions are used to
help establish that a belief is reasonable in a wide range of controver-
sial legal disputes. We will illustrate this phenomenon by reference to
an issue arising in the context of the "battered women's syndrome".
Many jurisdictions limit the right to kill in self-defense to circum-
stances in which the use of deadly force is reasonable. Feminist
scholars have recognized that much of the resistance to allowing
battered women to plead self-defense after killing their husbands is
due to uncertainty about whether their behavior is reasonable.2 How
can skeptics be persuaded that many battered women who killed their
husbands have behaved reasonably?
A response by a defendant that is reasonable in one circumstance
may be unreasonable in another. Statutory formulations typically
require that the reasonableness of conduct is relative to "the actor's
situation".26 Much of the difficulty jurors have in deciding whether it
is reasonable for battered women to kill is because they may not
understand the actor's situation; they are unlikely to have been in the
predicament in which the battered woman finds herself. This experi-
ence might be said to be "beyond the ken of the average juror".7
Many feminist scholars have argued that allowing expert testimony
about the battered women's syndrome is crucial to enable jurors to
comprehend the general predicament and better assess whether the
response of a particular defendant was reasonable. According to Cyn-
thia Gillespie:

25 Feminist scholars disagree about whether a defense for battered women who
kill their spouses should be assimilated within the parameters of self-defense. See
Christine A. Littleton, 'Women's Experience and the Problems of Transition:
New Perspectives on Battered Women', University of Chicago Legal Forum (1989):
23-59.

2( See, e.g., Model Penal Code: Sec. 2.01(2) (d).


27 This is one requirement for expert testimony. See Mason Ladd, 'Expe
Testimony', Vanderbilt Law Review 5 (1952): 414-31, 418.

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Date Rape, Social Convention, and Reasonable Mistakes 105

The research of the last decade on wife-battering has revealed that women who
have been chronically beaten tend to react to their situation in characteristic
ways, which often run counter to people's expectations of what the normal
human reaction would be. Psychologists have come to call this cluster of typical
behaviors and emotional responses to the experience of living with and loving a
man who is physically abusive the "battered woman syndrome".28

How is evidence about this syndrome material to the plight of the


particular defendant? Gillespie continues:

It is extremely important to understand that battered woman syndrome testi-


mony is offered in a self-defense trial to shed light on the reasonableness of the
defendant's behavior. In legal terms, that is its relevance.... The sole purpose of
such testimony is to help the jury understand why the woman reasonably
believed she had to act as she did to defend herself.29

In other words, evidence about the syndrome is material to establish


the reasonableness of the defendant's behavior. A number of courts
have concurred that testimony about the syndrome is useful for this
purpose.30
But how does a particular defendant's behavior conforming to a
syndrome help to establish that it is reasonable? Clearly, Gillespie is
arguing enthymatically. Suppose that a battered woman is on trial for
killing her husband, and seeks to introduce expert testimony on the
battered woman's syndrome to support her plea that her killing was
reasonable under the circumstances. The premise

(1) Her behavior conforms to a syndrome, that is, falls within a


"cluster of typical behaviors".

does not entail

(3) Her behavior is reasonable.


without the support of a suppressed premise. The weakest premise
that will make the argument valid is

28 Cynthia Gillespie, Justifiable Homicide (Columbus: Ohio State University Press,


1989), p. 157.
29 Id., pp. 159-60 (emphasis in original).
30 See, e.g., State v. Kelly, 478 A.2d 364 (NJ. 1984).

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106 Douglas N. Husak and George C. Thomas III

(2) Behavior that conforms to a syndrome, that is, that falls


within a "cluster of typical behaviors", is reasonable.

Or perhaps (1) is intended not to support (3), but

(3') There is evidence that her behavior is reasonable.

If so, the weakest premise that will entail (3') is

(2') Evidence that behavior conforms to a syndrome, that is,


that it falls within a "cluster of typical behaviors", is evi-
dence that the behavior is reasonable.

Unless (2) or (2') were true, it is hard to see how expert testimony
about a syndrome could help to establish the reasonableness of the
behavior of a particular battered woman who kills her husband.
Premise (1) cites a convention about the behavior of battered
women, but it entails the existence of a conforming belief. The
woman's behavior in killing her husband could not be reasonable
unless her belief in the necessity of her act were reasonable. This
reasoning suggests that women in similar predicaments tend to formu-
late the same beliefs about the need for self-defense as were formed by
this particular defendant. If that is so, the beliefs and responses of this
particular woman do not fall outside the statistical norm. Whether a
"cluster of typical behaviors" is called a "syndrome", a "social norm",
or a "convention", it is used to help establish the reasonableness of
beliefs that conform to it.

Notice that this strategy to help establish the reasonableness of a


particular belief avoids the issue of whether the belief is true or false.
Under the law of self-defense, a defendant is not liable for a killing
when she reasonably believes she is in imminent danger of death or
serious bodily injury, and reasonably believes deadly force is a neces-
sary response. A particular battered woman may have these reasonable
beliefs, even though she is not in imminent danger, and deadly force is
unnecessary. Proof that a particular husband would not have killed the
defendant, or that the defendant need not have resorted to deadly
force to escape her peril, does not entail that her beliefs to the
contrary are unreasonable.

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107
Date Rape, Social Convention, and Reasonable Mistakes

Is premise (2) true? Is any belief reasonable when it conforms to a


syndrome or a convention? Doubts can certainly be raised. Perhaps
there is a perspective from which an entire convention can be con-
demned as unreasonable. If so, perhaps (2') is true - that is, evidence
that a belief conforms to a syndrome or convention is helpful but
not dispositive in establishing that it is reasonable. Doubts can also be
raised about (2'), although we will not pursue them here. Instead, we
will assume that evidence that a belief conforms to a convention
provides evidence that the belief is reasonable. More specifically, we
will assume that evidence that a belief about consent to have sex
conforms to a convention provides evidence that the belief is reason-
able.
Indeed, it is hard to see how a number of beliefs could be shown to
be reasonable without citing social conventions. We are at a loss to
describe an alternative answer that the taxi driver or waiter could have
provided that would help to establish the reasonableness of their
beliefs about the consent of the passenger or customer. Of course,
these examples are not controversial because an overwhelming per-
centage of passengers or customers express their agreements to pay by
the behavior in question. But a conforming belief can be reasonable
even though the percentage of people who act conventionally is less
than overwhelming. For example, consider the convention that cus-
tomers tip their waiters after eating. Suppose a waiter keeps a small
amount of money he discovers on a table after his customer has paid
his bill and left the restaurant. This waiter could rely on the conven-
tion as evidence of the reasonableness of his belief that the money
belonged to him, and that he therefore lacked the intent to steal, even
though a substantial number of people do not conform to the conven-
tion about tipping.
As the percentage of people who engage in a particular pattern of
behavior declines, it becomes more difficult to conclude that any
belief about what that behavior expresses is reasonable. At some point,
behavior would become so idiosyncratic that it could not be said to
comprise a convention at all. Judgments about the reasonableness of a
belief become more controversial to the extent that the behavior that
gives rise to the belief lacks the universality of the taxi example.

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108 Douglas N. Husak and George C. Thomas III

If this conclusion is correct, anyone who is interested in the general


problem of how beliefs are shown to be reasonable should be inter-
ested in understanding social conventions. Unfortunately, meaningful
generalizations about social conventions are almost impossible to
formulate, since very different conventions operate in different cir-
cumstances. For example, consider the question of whether an agree-
ment is expressed by silence. In some circumstances, silence might
indicate consent. Suppose that members of the board of directors of a
corporation are asked in a meeting whether they have any objections
to a proposal. If they are given a reasonable opportunity to reply, but
remain silent, their silence is taken as an expression of their agreement.
In other circumstances, silence does not indicate consent. Persons do
not agree to pay for unsolicited merchandise received through the
mail, even though they fail to object after receiving it. In still other
circumstances, the conventions are unclear and still evolving. If some-
one carefully and meticulously cleans a driver's windshield while he is
stopped for several minutes in a traffic jam in New York, the worker
expects and hopes to be compensated, but it is unclear whether the
driver's failure to object while the service is performed expresses his
agreement to pay. Reasonable minds can and do differ about these
issues.

Even if the actual conventions indicate otherwise, it is easy to


imagine a social convention according to which silence is reasonably
interpreted as an indication of consent. Of course, whether and under
what circumstances such a convention would be desirable is an entirely
different matter. Enormous opportunities for misunderstanding and
uncertainty would be created if a particular kind of agreement could
be expressed by silence. Although no convention can eliminate mis-
understandings entirely, the potential for error would be reduced if
silence were never regarded as an expression of consent. On any given
occasion, fewer debates about agreements would result by introducing
a new convention requiring parties to sign a document clearly stating
the nature of their agreement. If this convention were adopted, all
agreements would come to resemble real estate contracts.
We are confident that greater clarity and certainty would result by

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Date Rape, Social Convention, and Reasonable Mistakes

substituting this convention for the myriad alternative conventions


that currently govern agreements in American society. Why, then, has
such a convention not arisen? The answer is that clarity is only one
among many desiderata in evaluating the conventions that pertain to
agreements. Despite its advantages, this new convention would bring
substantial disadvantages. Such a convention would be cumbersome
and would discourage spontaneity. In some circumstances, agreements
must be made quickly, even if they occasionally give rise to misunder-
standings. But whatever the strengths and weaknesses of this proposal,
it is clear that no such convention surrounds most of the agreements
made in contemporary American society.
If reasonableness is partly dependent on convention in the way we
have suggested, it is crucial to understand the convention by which
women express their agreements to sexual relations. Since we will refer
to this particular social convention often, it will be convenient to give
it a name. We will call it convention "wcs", to stand for "women's
consent to have sex". We are apprehensive that the choice of a simple
variable to represent such a complex phenomenon may be misleading.
Yet a label is needed to refer to the social convention that describes
how women tend to express their agreement to have sex.
An empirical understanding of convention wcs is crucial, since wcs
is relevant to the reasonableness of the man's belief in the woman's
consent. It may be that convention wcs functions like Gillespie describes
the role of the battered women's syndrome: evidence that conduct falls
within the statistical norm represented by the convention establishes,
or at least helps to establish, that it is reasonable. If so, conformity
with convention wcs is a reason to conclude that the man's belief is
reasonable, whether or not his partner has in fact consented. In the
event that she has not consented, the man who sincerely believes
otherwise has made a mistake that may be reasonable, and a reason-
able mistake should be a defense to a prosecution for rape.
How is consent to sexual relations conventionally expressed, such
that a man has reason to believe that consent has been given, whether
or not he is correct? How pervasive is any convention that can be
described? The answer to these difficult questions connect social

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110 Douglas N. Husak and George C. Thomas III

science to legal philosophy. Before attempting to describe the nature


of convention wcs directly, we will note the dangers of trying to
resolve these matters without consulting empirical data.

III. SCHULHOFER'S APPROACH

Stephen Schulhofer claims:

The usual feminist position [that "no" means "no"] does not g
allowing convictions for rapel. Why should there have to be
there is no question that her partner can enforce his will if he h
silence be taken as equivalent to consent? Why should the law in
the existence of consent in the absence of an explicit "no"? ...
presume a privilege to intrude upon the rights of others, but ra
the autonomy of each person and stand clear in the absence of a
tive manifestation of consent. On this basis, anything less than
should not count as consent."

In support of his view, Schulhofer cites with appr


Washington statute [that] captures this approach: 'Cons
at the time of the act of sexual intercourse there are
conduct indicating freely given agreement to have
course".32

It is not altogether clear that this statute supports the point Schul-
hofer intends to make. He would find a defendant guilty of rape who
acts without a "direct, affirmative manifestation of consent; anything
less than an explicit 'yes' should not count". However, words like
"direct" and "explicit" are notoriously ambiguous. Can an expression of
consent satisfy these demanding criteria even though it is not ver-
balized? Need a woman actually say yes or something clearly synony-
mous? Doubts about this matter seem to be resolved by Schulhofer's
indication that the Washington statute supports his point of view. This
statute specifies that an agreement to have sex can be expressed by

31 Steven Schulhofer, 'The Gender Question in Criminal Law', in Ellen Paul,


Fred Miller, and Jeffrey Paul (eds.), Crime, Culpability, and Remedy (Oxford: Basil
Blackwell, 1990), pp. 105-137, 133.
32 Id., p. 133 (citing Wash. Code Ann. sec. 9A.010(6) (1981)).

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Date Rape, Social Convention, and Reasonable Mistakes 111

words or conduct, strongly implying that agreements can be expressed


nonverbally. As so construed, the statute leaves the fundamental
problem unresolved: What "conduct", short of verbalized consent,
indicates an agreement to have sex? When does "affirmative" participa-
tion become a "direct" manifestation of consent? Even with Schul-
hofer's gloss, the statute is not very helpful in answering these ques-
tions.

It appears that Schulhofer and the state of Washington seek to solve


the problem of ambiguity about consent by incorporating a legal
definition of consent to have sex into the rape statute, thereby trans-
forming consent from a question of fact to a question of law. Thus
it follows that a man who has sex knowing that he lacks a "direct,
affirmative manifestation of consent" has the mens rea condemned by
the statute. Any mistake he might have made about consent must be a
mistake of law rather than of fact. The significance of this distinction
is that criminal law almost never recognizes a mistake-of-law defense
if the mistake is about the existence of the law or what the law
prohibits.33 The effect of Schulhofer's proposal, then, is to render
irrelevant any mistake about whether the woman consented as long as
the man knew she did not give a "direct, affirmative manifestation of
consent". As a result, it will be easier to resolve hard cases in which
the woman does nothing to indicate she gave consent.
Schulhofer's proposal raises fundamental concerns that vary de-
pending on what kind of claim he is making. Is it conceptual, norma-
tive, or empirical? Despite his indications to the contrary, we are
skeptical that he really intends to defend his position by preference to
the meaning of "consent".34 Surely nothing in the meaning of consent
establishes that "anything less than an explicit 'yes' should not count as
consent". It is simply false that the word "consent" has this meaning;
no definition can identify how consent is or ought to be expressed.

33 See, e.g., Model Penal Code 52.04 (except for some very narrow exceptions,
mistake of law is a defense only when it negates the mental state required by the
offense).
34 Elsewhere Schulhofer claims that he is "spell[ing] out what the concept of
consent means". Schulhofer, 'The Gender Question', p. 133.

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112 Douglas N. Husak and George C. Thomas III

Schulhofer's position, if it should be accepted at all, cannot be sup-


ported as a conceptual truth about the meaning of the word "consent".
Two possible interpretations remain. Schulhofer's position might be
construed as a normative view about how consent should be expressed.
Perhaps adoption of his legal standard would cause more men to insist
on explicit indications of consent, thus helping to avoid misunder-
standing and its painful consequences. But what would be the cost of
using Schulhofer's proposal to seek to improve on the present state of
affairs? If consent is routinely expressed in ways that are not contem-
plated by Schulhofer's ideal model, the application of his normative
position to punish defendants in the real world raises potential prob-
lems of justice that we think are insurmountable. If convention wcs
includes implicit manifestations of consent, a man who does not
receive a direct, explicit affirmation of consent may nonetheless have
reason to believe that the woman is consenting. If women conven-
tionally express consent in this way, punishing this defendant can be
justified only on Holmes's view that "[plublic policy sacrifices the
individual to the general good",35 and that it is more important to
encourage the social convention to change or to vindicate a particular
view of women's autonomy than to do justice in an individual case.
But if the law should deal justly with each individual defendant, it is
objectionable to punish someone to promote an ideology or to effect a
change in societal views.
Finally, Schulhofer's position might be interpreted as a view about
how consent is in fact expressed. As so understood, his position is
designed to report existing social conventions about how consent is
actually conveyed. This interpretation would provide a good reason to
punish a defendant who engages in sex without a direct, explicit
indication, because his belief would be unreasonable in light of the
convention that describes the way consent is expressed. Unfortunately,
as so construed, Schulhofer's position is totally lacking in empirical
support. It might report convention wcs, but Schulhofer cites no
evidence that his description is accurate.

35 Oliver Wendell Holmes, The Common Law (Boston: Little, Brown and Co.,
1963), p. 41.

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Date Rape, Social Convention, and Reasonable Mistakes 113

If our concern with individual justice necessitates an inquiry into


how social conventions facilitate the expression of consent, all a priori
speculation about such matters is called into question. For example,
consider the familiar claim that "no means no". What could this claim
mean, and why would anyone think it is important to be instructed
about it? It is uncharitable to construe this claim as a tautology about
the meaning of the word no. As so interpreted, this claim is true but
uninformative. What else could "no" mean other than no? More
plausibly, this claim is about the social conventions by which noncon-
sent is expressed. That is, when a woman says the word "no", sh
intends to express her lack of consent, and it would be unreasonable
for a man to believe otherwise. As so construed, this claim is empiri
cal, not tautological. Yet those who repeat this phrase seldom provide
any empirical support for it. Undoubtedly they think its truth is too
obvious to require empirical support, and perhaps they are correct. But
if this claim is indeed obvious, it should be easy to substantiate
Perhaps one woman in a million has not intended to express her lack
of consent by saying no. But perhaps many women have not intended
to express their lack of consent by saying no. Neither claim can be
dismissed a priori. There is simply no way to be sure in the absence of
empirical research.
If social convention is important in assessing a defense of mistake
we should not merely assume that a woman does not consent to sex
unless she expresses her consent directly and explicitly. Without
empirical data, theorists must depend on speculation. Our guesses will
tend to be generalizations from our own experience. Speculation about
social conventions that does not draw from empirical research is thus
likely to betray our prejudices and our ideologies.
One final word of caution. Schulhofer's proposal is not without cost
to women if it distorts rather than accurately represents convention
wcs. No doubt he acts from the best of motives: to help reduce the
incidence of rape. However, many women may have good reason to
resist his proposal. Suppose that a woman who wants to have sex with
a man does not follow Schulhofer's advice about how to express her
desires. Perhaps she is too reticent to say "I want sex" clearly and
unambiguously. For better or worse, she finds such expressions dis-

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114 Douglas N. Husak and George C. Thomas III

tasteful. Her failure has not been a significant problem in the past; she
has not been raped, and has been able to have sex without undue
difficulty whenever she desires, without having to express her consent
directly and explicitly. Suppose, however, that this woman has the
misfortune to desire sex with a man who is persuaded by Schulhofer's
recommendations. Not wanting to be guilty of rape, he abstains from
sex with this woman because he has not yet received her unambiguous
expression of consent. He too feels awkward and uncomfortable about
explicitly asking for sex. Someone might protest that neither adult
should feel uncomfortable about expressing their desires, but that is
beside the point. The point is that they do feel this way, and might
resent having someone tell them how they should feel. The result is
that this woman will be less successful in getting what she wants
unless she changes her behavior. A proposal designed to make it more
difficult for men to get away with rape might have the unanticipated
effect of making it harder for some women to get what they want.

IV. SOCIAL CONVENTIONS ABOUT CONSENT


TO HAVE SEX

We begin with more general questions about the soc


involving courtship. Do women give nonexplicit e
men in courtship settings not involving sexual interc
is this encouragement communicated, and what is th
will make a mistake of fact about whether he has b
Later we will proceed to the more narrow question of
give nonexplicit consent to sex and the attendant ris
"nonexplicit", we mean both nonverbal and verbally indi
No one should be surprised that the empirical evid
that women give nonexplicit consent to such cou
whether they want to be approached by a particu
Moore and Diana Butler documented fifty-two "non
behaviors" that women use in "social contexts such as
the university snack bar".36 These behaviors included

36 Monica Moore and Diana Butler, 'Predictive Aspects of N


Behavior in Women', Semiotica 76 (1989): 205-15, 206.

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Date Rape, Social Convention, and Reasonable Mistakes 115

ing, smiling, laughing, nodding, kissing, requesting aid, touching, and


caressing".3 Moore and Butler concluded that in 90% of these cases an
observer in a social context could accurately predict from the woman's
nonverbal behavior whether she would be approached by a man.38
Moreover, all of the women judged to be "approachable" based on
their nonverbal conduct accepted at least one male invitation, and
women judged not "approachable" received far fewer invitations.39
Thus, not only could an external observer predict whether a male
would approach, but the observer could also predict whether the
woman would accept at least one invitation.
These behaviors do not appear random. An earlier study by Moore
demonstrated that, as contexts changed, women engaged in nonverbal
solicitation behaviors with greater or lesser frequency.40 In this study,
women engaged in roughly 15 times as many of these behaviors in a
singles bar (706) as in a Women's Center meeting (47).41
Whether women engage in nonexplicit courtship behaviors with
the conscious purpose of getting men to approach them is not relevant
for our purposes. What matters is that women in fact engage in these
behaviors, and that men typically respond in a way women find
appropriate. When the male response is appropriate, no mistake has
been made, and the social interaction is wholly consensual. But the
possibility of mistake is always present. The women judged "approach-
able" in the Moore and Butler study did not accept all male invita-
tions.42 Sometimes a man correctly perceived that the woman was
interested in an invitation, but incorrectly perceived that she was
interested in an invitation from him.
If women engage in nonverbal solicitation behaviors to induce men

37 Id., 206.
38 Id., 209 (p < than 0.001, meaning that the chance of this being a random
result is less than 1 in 1,000). Moore and Butler avoided observer bias by having
a different observer decide whether the woman was approached. Id., 208.
39 Id., 208 (Table 1) & p. 210 (Table 3).
40 Monica Moore, "Nonverbal Courtship Patterns in Women, Context, and
Consequences', Ethology and Sociobiology 6 (1985): 201-11, 208.
41 Id.(p < than 0.001).
42 See Moore and Butler, 210.

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116
Douglas N. Husak and George C. Thomas III

to invite them to dance in singles bars, they might use similar tactics
to signal their interest in having sex. Reasonable misreadings of these
behaviors could occur. Timothy Perper and David Weis concluded
that women frequently exhibit what they call "proceptive" behaviors,
that is, active behaviors designed to elicit an offer to have sex from a
particular man.43 In the Perper and Weis study, 87.2% of the women
described proceptive behaviors when asked how they would "influ-
ence" a man to have sex with them for the first time.44 The remaining
subjects in the study did not describe proceptive behaviors, but said, in
one way or another, that they would wait for a man to initiate sex
"naturally".45
Proceptive behaviors include explicit as well as nonexplicit signals,
but fewer than one-quarter of the women who indicated their willing-
ness to use proceptive strategies in the Perper and Weis study said
they would ask the man to engage in sex.46 Sandra Byers and Kim
Lewis similarly conclude that "women most commonly use nonverbal
methods to give consent to sexual intercourse".47 For example, 51% of
the subjects mentioned one of the following as a way to signal their
interest in sex: offer the man a drink, invite the man to a private place
that has a romantic ambience, listen to music or dance, and converse

43 See Timothy Perper and David Weis, 'Proceptive and Rejective Strategies of
U.S. and Canadian College Women', Journal ofSex Research 23 (1987): 455-80.
44 Id., 462.
45 Id., 466 (Table 2).
46 Id., 465 (Table 2) (19.7% of the total 87.2% who mentioned proceptive
strategies). The methodology involved female college student volunteers who
wrote essays describing how they would "influence" men to have or avoid having
sex with them. Id., 459. Although writing an essay is one step removed from
behavior and does not imply that a woman's "actual behavior mirrors her
description", Perper and Weis conclude that "there is evidence strongly suggest-
ing that behavior and description are very similar in this case". Id., 474.
47 E. Sandra Byers and Kim Lewis, 'Dating Couples' Disagreements Over the
Desired Level of Sexual Intimacy', Journal of Sex Research 24 (1988): 15-29, 26
(citing to E. S. Byers, 'Female Communication of Consent and Nonconsent to
Sexual Intercourse', Journal of the New Brunswick Psychological Association 5 (1980):
12-18).

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Date Rape, Social Convention, and Reasonable Mistakes 117

about nonsexual topics.48 Of course, these behaviors do not always


signal a willingness to have sex; women behave similarly to signal their
interest in having nonsexual relationships with men. If so, a man who
is invited to a woman's apartment and offered a drink might well be
uncertain of the message the woman is sending.
But even if the man misunderstands the initial signals, how can he
misunderstand lack of consent at the point of intercourse? Regardless
of their earlier ambiguous conduct, surely women who do not consent
to have sex will always communicate their unwillingness in a direct,
explicit manner prior to penetration. However, this common-sense
notion turns out to be empirically questionable.
Again, it is useful to compare the situation in which the man
mistakes the meaning of the woman's behavior with the situation in
which he correctly perceives that she is indirectly signalling her
consent to have sex. Assume that M observes several of the nonexplicit
proceptive strategies from his date, F, which culminate in an invitation
to her apartment. If M initiates a physical advance, as by putting his
arm around F, she may respond in a nonexplicit manner; for example,
she may "snuggle up to the man".49 M may escalate his physical
advance, and F may meet each successive escalation with further
encouraging, proceptive behaviors. In this way, M and F can engage in
consensual sex without either explicitly signifying consent. We will
call this Outcome 1.
On the other hand, if M is mistaken, and F does not want to
engage in sex, she is likely to engage in what Perper and Weis call a
"rejection strategy". One option, of course, is for the woman to engage
in explicit, blunt rejection behaviors that will escalate if the man does
not desist.50 However, most of the women in the Perper and Weis
study described what the researchers called an "incomplete rejection"
strategy.51 In this strategy, the woman "wishes not to terminate the

48 Perper and Weis, supra fn. 43, p. 465 (Table 2) (categories described at Id.,
462).
9 Id., 463.
50 Id., 472 (Table 3).
51 Id., 471.

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Douglas N. Husak and George C. Thomas III

relationship with the man but wants to avoid further sexual involve-
ment with the man at this time".52 If F wishes the relationship to
continue, she may engage in behaviors that look somewhat similar to
proceptive behaviors - for example, permitting the man to hug and
kiss her but not responding "in a really warm way".53 Perper and Weis
tentatively suggest that "not all men could distinguish seduction and
incomplete rejection strategies".54
If the man misunderstands the significance of the incomplete rejec-
tion strategy, he may continue to make advances. But surely (common
sense suggests that) under normal circumstances a woman who is faced
with imminent sexual intercourse against her will should have no
difficulty delivering an explicit, unambiguous "no". If so, virtually all
incomplete rejection strategies would eventually escalate into blunt,
explicit rejections (Outcome 2).55 Again, however, reality is more
complex than ideology. Assuming that M does not desist in his efforts
to have sex with F, two other categories of possible outcomes remain.
F may escalate her incomplete rejection strategy but stop short of
saying "no" or physically resisting (Outcome 3). Or F may decide to
have sex with M as a way of maintaining the relationship (Outcome
4).
Outcome 4 raises the issue of the significance of consent in the
context of a rape prosecution. As we have indicated, the law regards
nonconsent as a necessary condition for the commission of rape. Some
recent literature, however, does not regard the presence or absence of
consent as the crucial variable to distinguish rape from noncriminal
sex. According to this view, rape should be understood as unwanted

52 Id. Other studies support the perception that to reject a man's advances
outright will cause him to terminate the relationship. See Miriam Lewin, 'Un-
wanted Intercourse: The Difficulty of Saying No', Psychology of Women Quarterly 9
(1988): 184-92, 188 (82% of women surveyed stated that it was "very likely" that
the man would not want to see the woman again if she refused an offer to have
intercourse) (Table 1).
53 Perper and Weis, supra fn. 43, 471 (quoting one of the essayists).
34 Id., 476 (noting that "the question warrants detailed research").
55 Id. 470 (themes IV 5 & II 6 & 7).

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Date Rape, Social Convention, and Reasonable Mistakes 119

sex.56 Interpreting rape as unwanted rather than as nonconsensual sex


will (perhaps self-consciously) result in an exponential increase in the
incidence of rape.57 One commentator has concluded that the so-
called "epidemic" of rape is "phantom" partly because female respond-
ents to surveys were counted as victims of rape if they indicated that
they had engaged in sex when they did not want to do so.58
The following example illustrates the difference between noncon-
sensual and unwanted sex. Suppose that M and F are alone after their
third date. M attempts to initiate sex; F declines; M stops. M explains
to F that he hopes to continue to date her, but he regards sexual
intimacy as an essential part of a satisfactory relationship. He indicates
that he is unwilling to go on future dates unless she acquiesces to his
sexual demands. Prior to M's ultimatum, F believed that the following
three alternatives were viable:

(1) They would continue to date, without having sex.

(2) They would continue to date, while having sex.

(3) They would not continue to date.

Suppose that F prefers (1) to (2) or (3) but believes that M has
foreclosed option (1). She must now choose between (2) and (3). She
may choose (3) and tell M that she is unwilling to date him on his
terms. But if she chooses (2), there is a sense in which she has con-

56 See Charlene L. Muehlenhard, Debra E. Friedman, and Celeste M. Thomas, 'Is


Date Rape Justifiable? The Effects of Dating Activity, Who Initiated, Who Paid,
and Men's Attitudes toward Women', Psychology of Women Quarterly 9 (1985):
297-310 (assuming equivalence between rape and having sex against a woman's
wishes).
57 Id., 308 ("justifiability ratings might have been lower" if "we had asked men
about the justifiability of 'rape' [instead of] the justifiability of John's having
sexual intercourse with [Mary] against her wishes").
58 See Neil Gilbert, 'The Phantom Epidemic of Sexual Assault', The Public Interest
(1991): 54-65. See also R. Lance Shotland and Lynne Goodstein, "Just Because
She Doesn't Want To Doesn't Mean It's Rape: An Experimentally Based Causal
Model of the Perception of Rape in a Dating Situation, Social Psychology Quarterly
46 (1983): pp. 220-32.

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120
Douglas N. Husak and George C. Thomas III

sented to unwanted sex. Since (2) represents her volition,59 she has
consented to sex. But there is a sense in which she does not really
want sex, because (1) continues to be her first choice.
It is likely that many sex acts fall in the "consensual but unwanted"
category. For one reason or another, many women (as well as men)
agree to unwanted sex. Perhaps many women, in reflecting on occa-
sions of unwanted sex, feel as though they had been raped. F is
especially likely to have this feeling if, shortly after she and M first
have sex, M decides not to see her again. But feeling as though she has
been raped is not equivalent to being raped.
Competing accounts of volition might permit a finding that F's will
was sufficiently constrained that she was not acting volitionally.?' Such
an account might support the conclusion that F was raped. According
to a recent poll, 42% of the women and 33% of the men classified an
act as rape when "a man argues with a woman who does not want to
have sex until she agrees to have sex"."' Perhaps this judgment is so
pervasive because M is not especially virtuous in forcing F to identify
the alternative she regards as second-best. But to say that M has
engaged in morally dubious behavior is quite different than to say that
he has committed a rape.
Even if some competing account of volition is correct, and F does
not act volitionally in the above scenario, it would seem that M's
belief to the contrary is reasonable. A long tradition holds that choices
made in the absence of a threat of harm are voluntary.' So, in

59 See Harry Frankfurt, The Importance of What We Care About (Cambridge:


Cambridge University Press, 1988).
')0 See, e.g., Catherine MacKinnon, Toward a Feminist Theory of the State (Cam-
bridge, Mass.: Harvard University Press, 1989), pp. 126-54, 150 ("Rape and inter-
course are not authoritatively separated by any difference between the physical
acts or amount of force involved but only legally, by a standard that centers on
the man's interpretation of the encounter. [This standard] is so passive, so
acquiescent, that a woman can be dead and have consented under it".)
"' Nancy Gibbs, 'When Is It Rape?', Time (June 3, 1991), pp. 48, 50.
62 See, e.g., Aristotle, 3 Ethics ? 1; Bernard Gert, 'Coercion and Freedom', in J.
Roland Pennock and John W. Chapman eds.: Nomos XIV Coercion (Chicago:
Aldine Atherton, 1972), pp. 30-48, 32.

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Date Rape, Social Convention, and Reasonable Mistakes 121

Outcome 4, either F consented, or M made a reasonable mistake about


her consent. In either case, M would not be liable for rape.
The issue is more complex in Outcome 3 (F escalates her incom-
plete rejection strategy but never to the point of objecting or physi-
cally resisting). To differentiate this Outcome from Outcomes 2 and 4,
it is necessary to assume that F does not decide to have sex with M,
but never physically resists or objects. She becomes, in effect, a passive
participant in an activity to which (we have presupposed) she has not
consented. As we noted above, Schulhofer argues that Outcome 3 is
(or should be) rape because no explicit indication of consent exists.
Outside of Schulhofer's ideal model, however, we have argued that M
is foreclosed from making a reasonable mistake of fact in this Out-
come only if convention wcs requires an explicit indication of consent.
Otherwise, M's belief in F's consent might be reasonable.
As we have indicated, the empirical evidence suggests that the
prevailing convention wcs is that women do not explicitly ask for sex
when they want it.63 Indeed, part of convention wcs may still manifest
residues of the Victorian ideology that viewed women as passionless,
passive participants in the sex act.64 If this convention describes a
sufficiently large number of women, M's mistake in a particular case
might be reasonable. Given the lack of empirical research in this area,
we believe that Outcome 3 presents a series of problems that are too
complex to permit a generalized judgment. But we believe that one
cannot follow Schulhofer and reject categorically M's mistake-of-fact
defense in Outcome 3 cases. After all, M may have misunderstood F's
incomplete rejection strategy as a sexual invitation, and we have
assumed that she did not explicitly communicate her lack of consent.
Contrast Outcome 3 with Outcome 1 - the scenario in which M and
F engage in consensual sex without expressing explicit consent. In
Outcome 1, F signalled her interest in sex by responding to M's
advances. But to distinguish an affirmative response from passive

63 See, e.g., Byers, 16 (Table 1) (only 26% of females listed "clear verbal consent"
as the most important method of giving consent to intercourse); Perper and
Weis, 465 (Table 2).
64 Perper and Weis, 477.

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122 Douglas N. Husak and George C. Thomas III

participation involves a subtle matter of degree about which mistakes


are possible.
Of course, Outcome 2 - when F follows an incomplete rejection
strategy by physically resisting or by saying no in an unambiguous
manner - is the most unlikely Outcome in which a mistake could be
reasonable. Before examining the empirical evidence, it seemed to us
that there could be little question about the legal consequences here.
How can it be possible for M to make a reasonable mistake about F's
consent when she says "no" or actively resists? The answer, of course,
is that it is not impossible for the social convention wcs to interpret
no as yes when it comes on the heels of an incomplete rejection
strategy. The empirical evidence offers some support for this reading
of wcs. In a 1988 study, 39% of Texas female college undergraduates
reported they had said "no" when they wanted to have sex.5 And
60.8% of the sexually experienced women in this study stated that they
had said "no" when they intended to have sex.6' From these data,
Abbey concluded: "It is easy to see how a man who has previously
turned a 'no' into a 'yes' might force sexual intercourse on a date who
says 'no' and means it".67
Why would so many women say no when they wanted to have sex?
Ninety percent of the women in the Texas study who fit this category
said that the fear of appearing promiscuous was at least somewhat
important in explaining their behavior.68 Indeed, compared to other
factors such as fear of sexually transmitted diseases and pregnancy, fear

"' Charles Muehlenhard and Lisa Hollabaugh, 'Do Women Sometimes Say No
When They Mean Yes? The Prevalence and Correlates of Women's Token
Resistance to Sex', Journal of Personality and Social Psychology 54 (1988): 872-79,
874.
66 Id., 874.
(7 Antonia Abbey, 'Misperception as an Antecedent of Acquaintance Rape: A
Consequence of Ambiguity in Communication Between Women and Men', in
Andrea Parrot and Laurie Bechofer, eds.: Acquaintance Rape: The Hidden Crime
(New York:John Wiley, 1991), pp. 96-111, 104-05.
08 Id., p. 876 (Table 2). Forty-nine percent said fear of appearing promiscuous
was moderately to very important.

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Date Rape, Social Convention, and Reasonable Mistakes 123

of appearing promiscuous explained far more of the variance between


women who had used this strategy and those who had not.69
The discussion to this point has paid insufficient attention to the
almost infinite complexity of the factual settings that produce an
Outcome 2. A single physical rejection (for example, F moves M's
hand from her leg) following hours of intense foreplay obviously pres-
ents a very different picture of nonconsent than repeated physical and
verbal rejections, delivered in an emotional and frightened manner. At
some point along this spectrum, it is no longer reasonable for M to
think that F has consented.
The reason that M's mistake-of-fact defense fails at this point is not
that the word no has a magic, transcendental quality. Rather, M's
defense becomes unreasonable because the social convention is that a
certain pattern of linguistic and nonlinguistic behavior could not
reasonably be understood to mean anything other than no. The social
convention wcs provides the vehicle through which M interprets the
words or actions of F. Until we more fully understand the social
convention about consent to have sex, any judgment about the reason-
ableness of a mistake about consent is fragile.
The centrality of social convention to cases of mistake helps to
explain two phenomena that have puzzled or angered many critics of
rape law. Blackstone defined rape as "carnal knowledge of a woman
forcibly and against her will".'7 Some courts interpreted this require-
ment to mean that "the female must resist to the utmost of her ability,
and such resistance must continue till the offense is complete".71
While this requirement has been justifiably criticized by modern
commentators, and seems to have been abandoned in every state, it
may have served a useful evidentiary function in the Victorian era.

69 Id., p. 875 (Table 1) (4.51% of variance explained by fear of appearing promis-


cuous; 1.35% of variance explained by fear of sexually transmitted diseases; 1.29%
explained by "situational factors" such as fear of pregnancy).
70 See Blackstone, supra fn. 10, *210. Lord Coke did not include a reference to
force in his Institutes, written roughly a century before Blackstone's Commen-
taries. See 3 Coke's Institutes *60 (1661).
71 Reidhead v. State, 250 P. 366, 367 (Ariz. 1926).

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124 Douglas N. Husak and George C. Thomas III

The social convention wcs in that era may have been that women who
consent to intercourse remain passive. If so, the male could not expect
explicit consent, and requiring resistance allowed men to distinguish
between consenting and unconsenting women.72
Similarly, until quite recently, most states permitted evidence of the
unchastity of the victim when a defense of consent was raised in a
rape prosecution.73 Although many states have in the last two decades
enacted "victim shield laws" that limit the admissibility of evidence of
the victim's sexual history, even the most restrictive of these statutes
permit evidence of prior sexual history with the defendant.7 Viewed
solely as a question of the woman's consent, her sexual history would
seem quite irrelevant. A person can consent to intercourse with the
same person 99 times and refuse consent on the 100th occasion. But
from M's point of view, his knowledge of F's sexual history, particu-
larly with him, is material to how he interprets her responses to his
advances. In these cases, not only is M operating within a general
social convention wcs about how women consent to intercourse, but
he is also influenced by a specific schema y that reflects how F has
responded to similar advances in the past. Perhaps most men would
believe that F had consented after viewing y through the lens of wcs.
If so, M's mistake might be reasonable under our assumption that
correspondence with a social convention helps to establish the reason-
ableness of a belief.
Social conventions are always changing. The recent elimination of
the resistance requirement and the restrictions on admission of the
sexual history of the victim may reflect such a change. The emerging
social convention might be shifting more of the risk of error on the
consent issue to men, imposing an affirmative duty to be more certain
that the women is truly consenting.7' There are good reasons to hope

72 Social conventions other than wsc may have played an historical role in the
resistance requirement - for example, there was likely a convention that the
woman's physical safety provided the only limit on male sexual access to women.
73 See State ex. rel. Pope v. Superior Court, 545 P.2d 946 (Ariz. 1976).
74 See Steven B. Katz, 'Expectation and Desire in the Law of Forcible Rape', San
Diego LawReview 26 (1989): 21-71, 37-41.
75 See Beverley Balos and Mary Louise Fellows, 'Guilty of the Crime of Trust:

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125
Date Rape, Social Convention, and Reasonable Mistakes

for such a change. As E. M. Curley argues: "We are dealing here with
people who are in a situation in which acting on a false belief involves
immediate, serious, and irremediable harm to someone else, while
refraining from acting on a true belief would involve only a small loss
to anyone".76 Is the convention really changing in this way? Only
careful empirical research, not wishful thinking, can substantiate this
hope.
The consequences of these empirical findings for the mistake-of-
fact defense in rape prosecutions are significant. Although more research
is obviously needed, there is little empirical evidence that the social
convention wcs is consistent with the view of men and women
entailed by the normative claims of some rape law reformers. Instead,
the evidence suggests a convention wcs that might produce somewhat
frequent mistakes of fact about a woman's consent. If so, and if the
reformers succeed in restricting or eliminating the mistake-of-fact
defense, some men will be convicted of rape even though they had
reason to believe that consent had been given.
Some might welcome this result. As noted above, one might believe
that it is more important to seek to change the social convention or to
send a symbolic message than to do justice in an individual case. But if
one believes that the criminal law should seek to apply the just result
in particular cases, men whose belief in consent is consistent with the
social convention seem unlikely candidates for convictions of a serious
felony. For this reason, legislatures should proceed slowly when
removing some of the common law barriers to rape convictions.

V. CONCLUSION

A number of feminist writers appear to realize t


tion is roughly as we have described it.77 They a

Nonstranger Rape', Minnesota Law Review 75 (1991): 59


relationship between M and F would create a heighten
explicit indication of consent).
76 Curley, 'Excusing Rape', 346.
77 See Susan Estrich, Real Rape (Cambridge: Harvard Un
100.

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126 Douglas N. Husak and George C. Thomas III

that we have grossly misrepresented the empirical evidence. Instead,


they may claim that their views have been misunderstood; they do not
aspire to describe existing conventions, but to change them. They are
painfully aware of the nature of our social conventions; these norms
are the problem, not the solution. They object to using the criminal
law to reinforce existing conventions they believe to be sexist and in
need of reform. As Susan Estrich writes: "We can use the law to push
forward".78

We are skeptical. It is easy to exaggerate the likelihood that legal


change will have a profound effect on people's attitudes and behavior.
If existing conventions are undesirable, the more appropriate response
is to promote educational reform. Women should learn to make their
intentions more clear, and men should be taught to proceed more
cautiously in the face of ambiguity. These important educational
efforts are currently being undertaken in many colleges and univer-
sities.79 But the potential of the criminal law to bring about these
objectives is extremely limited. In the meantime, the punishment of
persons whose behavior is reasonable according to existing conventions
is manifestly unjust. Until these educational efforts succeed in altering
convention wcs, the criminal law has little recourse but to follow.

Dept. of Philosophy, Law School,


Rutgers University, Rutgers University,
New Brunswick, NJ 08903 Newark, NJ 07102

78 Id., p. 101.
79 See, e.g., Patrick J. Harrison, Jeannette Downes, and Michael D. Williams,
'Date and Acquaintance Rape: Perceptions and Attitude Change Strategies',
Journal of College Student Development 32 (1991): 131-39.

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