The judge at the trial of former Enron CEOs Jeffrey Skilling and Ken Lay handed prosecutors a strategic victory Wednesday, saying he would tell jurors that “deliberate ignorance” of fraud at the collapsed energy company was not a justifiable defense.
If prosecutors in criminal rape cases were allowed to show jurors that the defendant practiced “deliberate ignorance” and the jury was told that this practice is not a justifiable defense, many of the “he said/she said” defenses would crumble.
This wouldn’t be unfair to defendants since they would be allowed to show how they verified that they had legal consent.
Also posted on my blog, http://abyss2hope.blogspot.com
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If I recall my criminal law class correctly, willful ignorance is generally treated as equivalent to knowledge for the purpose of evaluating the defendant’s criminal liability. Presumably there’s not a legal exception for rape cases.
The difficulty is probably that it would be very hard to prove in a rape case in a way that wouldn’t also prove the defendant’s guilt under a different standard. Mistaken belief in the woman’s consent isn’t a defense unless the mistake was objectively reasonable, and anything that proved deliberate ignorance would probably also show objective unreasonableness.
Just to clarify, that’s the official “black-letter” standard. It is, of course, routinely misapplied by judges and juries, but that’s a slightly different issue.
what do you mean “what if…?” i’m pretty sure that the SAT analogy for enron employees is:
my body : rapist::my finances : enron executives
(disclaimer: this is in no way meant as a joke to diminish the plight of rape victims. it’s intended to heighten the plight of enron victims.)
A third Duke lacrosse player was indicted for rape this afternoon. It looks like the victim’s account is continuing to hold water.
I agree with the post. As long as the defense that “I really couldn’t reasonably have know that she didn’t consent” is allowed. (That defense should be really easy to overcome in most cases.)
There’s been a recent proposal in Scotland to change the wording of the law concerning rape, so that for it to be rape, the perpetrator must know the victim didn’t consent or be “reckless as to whether the victim consented”. So the perpetrator would have to show that the victim did consent, including steps the perpetrator took to find out if the victim did consent.
Unfortunately, Scotland has a bad record when it comes to convicting rape. It remains to be seen how the proposed changes will affect this.
–IP
Sounds very reasonable.
Although I’m unaware of a case where “I didn’t know she didn’t consent” was used. Is there an example?
I would expect that it is routine for the defence, when arguing “she consented” also to add “even if she didn’t, the defendent believed that she did”.
In England, until recently, even an unreasonable belief that there was consent was sufficient to defeat a rape charge. This is the notorious “Morgan defence”.
My apologies for posting. I didn’t realise this was a feminst-only thread.
Daran,
Those who are feminist-friendly on the subject of rape/sexual assault are welcome to comment on my posts.
…know or should have known…
…reckless disregard of the truth…
…acted as would a reasonable and prudent person…
…failure to act with due diligence…
…sticking one’s fingeers in one’s ears and singing LALALALA, can’t hear you…
I doubt anyone who’s read a fair sampling of my posts would consider me feminist-friendly on this or any other subject. Hopefully they would also see that I have no tolerance for victim-blaming, rape trivialisation, denial and apology.
There is a third way.
Abyss, I understand what you’re reasoning is here. But I think the Enron example more appropriately would apply *not* to the alleged rapists themselves but to all the rest of the team members at the party. Ken Lay and Jeffrey Skilling have argued from day one that “they didn’t know” about the corruption and all the financial shennanigans going on under them and thus are one step removed in regard to criminal liability from the Enron employees who actually conducted the transactions in questions. (Early on internal investigations showed that not only did they both know but they ordered their underlings to conduct these transactions.) So while I understand what you’re arguing, I don’t think that’s really what the prosecutors are arguing in the Enron case. Now, if, say, the captains of the LaCrosse team had ordered the gang rapes and knew they were occurring by their underlings but didn’t technically participate in them, I think you’re argument could be applied directly to the Duke case.
“‘Deliberate ignorance’ and the jury was told that this practice is not a justifiable defense.”
It’s the “she wanted it” or “she was asking for it” defense and he’d have to prove how he knew she consented.
No, it’s a third-party defense — it’s one set of people removed from criminal liability. It’s the top guys saying they didn’t know their subordinants were raping and pillaging for them.
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It’s very much like The Rape of Mr. Smith story. If we prosecuted all rapists like we do those who rob or murder, women wouldn’t be so afraid to press charges and conviction rates for rape would go up.
As I recall, the Morgan defense has to do with the rape of a woman that was enabled by her husband. He gave the key to his house to his military subordinates (as in, he was their commanding officer) and told them to have sex with his wife and not to worry if she seemed alarmed because that’s the way she liked it. I might have this case mixed up with some of the other rape cases (Leek?) used to teach core criminal law principles, but in any event, “reckless disregard” and “deliberate indifference” go to the concept that one’s professed lack of knowledge is in such conflict with what one should have known the truth to be if one had even a single neuron working that it’s impossible to believe that in fact one didn’t really know.
There’s normally no need to apply this standard to rape cases because there’s rarely any argument that there is an impediment (whether voluntarily created or created by third parties to deceive) to direct knowledge of what is happening.
It is the Mens Rea defense often used in rape cases. Very easy for the defense to make and very difficult for the prosecution to disprove. It would be what Kobe Bryant’s defense team might have pursued if the accuser hadn’t been harrassed into dropping the case. In fact, when Bryant apologised as a condition for dropping the case, he pleaded ignorance of her non-consent. It was a “Gee, so sorry. I didn’t know she was not consenting” apology.
I am probably harping on technicalities but there is a difference between the reasonableness of a perpetrator’s belief that the woman had consented and whether or not he deliberately structured events so that he wouldn’t have traceable knowledge of whether she consented. That’s the analogous situation with regard to the Enron defendants.
I’m with Laylalola. Ignorance (willful or otherwise) that someone else is committing a crime is not the same as ignorance that one’s own actions are criminal.
The onus is still on the prosecutor to prove that an actual crime did occur. The victim of virtually any crime, not just rape, must testify, “I did not consent, but s/he did it anyway,” and the prosecutor must provide evidence that supports that statement.