Negligent Rape and Reasonable Beliefs

Publikation: Bidrag til tidsskriftTidsskriftartikelForskning

Resumé

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
OriginalsprogEngelsk
TidsskriftShipping news : newsletter
Vol/bind7
Sider (fra-til)4-14
Antal sider10
ISSN1603-2993
StatusUdgivet - 2008

Emneord

  • Voldtægt
  • Uagtsom voldtægt
  • sociale konventioner
  • sociale normer
  • Epistemtiske standarder

Citer dette

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Negligent Rape and Reasonable Beliefs. / Hansen, Pelle Guldborg.

I: Shipping news : newsletter, Bind 7, 2008, s. 4-14.

Publikation: Bidrag til tidsskriftTidsskriftartikelForskning

TY - JOUR

T1 - Negligent Rape and Reasonable Beliefs

AU - Hansen, Pelle Guldborg

PY - 2008

Y1 - 2008

N2 - 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

AB - 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

KW - Voldtægt

KW - Uagtsom voldtægt

KW - sociale konventioner

KW - sociale normer

KW - Epistemtiske standarder

KW - Rape

KW - Negligent rape

KW - Social conventions

KW - social norms

KW - Epistemic standards

M3 - Journal article

VL - 7

SP - 4

EP - 14

JO - Shipping news : newsletter

JF - Shipping news : newsletter

SN - 1603-2993

ER -