Negligent Rape and Reasonable Beliefs

In every known society human sexual intercourse is enacted as a rule-bound practice that involves certain rights and obligations. In Denmark the official policy is that the rules to govern lawful sexual intercourse should be based on the idea of mutual and voluntary consent between two adults; and as a matter of fact such rules are accepted and followed by far the most. Yet, the approach taken by Danish Criminal Law to rape does not pay heed to these rules, but is rather based on a most narrow conception of male responsibility and obligation that stands in clear opposition with practice and policy alike. This approach requires that in order for a man to be guilty of rape he not only has to force intercourse by violence or threat of violence, but also to believe this to be against the wants of the woman. Yet it does this without stipulating any obligations on behalf of the man to obtain what amounts to reasonable beliefs in the situation concerning her wants. In principle this opens for the possibility, when intercourse has been proven to be forced, of defending ones innocence by claiming that one believed that the act was consensual, no matter how unreasonable this belief is. In judicial practice such defences are often acknowledged if the belief is reasonable by some general standard, even when this standard does not pertain to the rules currently governing the practice of intercourse in Denmark. As a result it has often been argued that the notion of negligent rape should be introduced into the Danish penal code. This, however, has been dismissed by the Minister of justice on the grounds that no objective momentum exists that should have made the defendant aware of the absence of consent. In the following I argue that such a claim is ill-conceived, as it fails to take into account how the rules governing the practice of intercourse form such a momentum.
Udgivelsesdato: March