Date rape, social convention, and reasonable mistakes

DOUGLAS N. HUSAK AND GEORGE C. THOMAS III

D A T E R A P E , S O C I A L C O N V E N T I O N ,

A N D R E A S O N A B L E M I S T A K E S

How is it possible for a man to make a mistake of fact about whether a women consents to intercourse? Initially, the very idea seems implausible. While mistakes of fact surely occur in many situations, sexual intercourse has two qualities that distinguish it from most of these situations. First, in the typical situation, a woman has ample opportunity to make known her views about whether she wishes to engage in sexual intercourse. Second, sexual intercourse is an activity about which a person is unlikely to hold a casual opinion. A man :may easily make a mistake about whether his companion wants to go to the movies or go out to eat, but it seems unlikely that he would make a mistake about whether she is withholding consent to have sex.

Nonetheless, most jurisdictions permit rape defendants to defend on the ground that they believed the victim consented to the intercourse. Our paper explores the question of how mistakes of fact about consent can occur and how they should affect liability for rape. We will 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 M E N S R E A

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

1 We would like to thank David Weis, Stephen Schulhofer, Dorothy Roberts, Wendy Pollack, Shaun Nichols, Lynn Miller, Donna Mancuso, Steven Katz, Tony

Law and Philosophy 11: 95-126 , 1992.

© 1992 KluwerAcademicPublishers. Printed in theNetherlands.

96 Douglas N. Husak and George C. Thomas III

George Fletcher notes that "no term [is] fraught with greater ambiguity", 2 but for our purposes mens tea 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 relationship 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 harmful, 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 tea. See, e.g., Douglas Husak, Philosophy of Criminal Law (Totowa, N.J.: Rowman and Littlet~eld, 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.

Date Rape, Social Convention, and Reasonable Mistakes 97

For example, one definition of battery at common law is "an offensive touching", s This verbal formulation does not require a particular mental state, and none seems implicit. It is possible that every offensive 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? 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

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 objecfonable to her"). 7 See Ckambless v. State, 79 S.W. at 578 (noting defendant's claim strengthened by failure of prosecutrix to "command him to desist"). s 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.

98 Douglas IV. Husak and George C. Thomas III

consent of the victim, l° the mistake-of-fact defense in a rape prosecution is almost always that the actor thought the victim had consented. 11 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. Morgan 13 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 unreasonable 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 nonconsensual sexual intercourse, and that the reasonableness of that belief is relevant only to the question of whether it was honestly held. is A majority of the Law Lords accepted Lord Hailsham's argumentJ 6

10 See 4 William Blackstone's Commentaries "210. 11 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). 14 Id. at 355 (Lord Hailsham). 15 Id. at 361. 16 Nonetheless, the House of Lords dismissed the appeal on the ground that no jury conld have believed that the defendants actually were mistaken. Id. at 353 (Lord Cross).


One difficulty with the Morgan standard is that it exempts fi:om 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 "smmal 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 unreasonable - 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 reasonable.

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 nonconsensual sex. If so, a man who lacks this intention has not committed a rape. This conclusion is bound to strike many vicfms of nonconsensual 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").


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. 2° 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 tea 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. 21 In addition, on virtually any occasion in which the defendant's belief about consent is unreasonable, 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 CriminalLaw, pp. 698-707. 2o 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 tea. 23 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.


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 reasonable. 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 understand 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 given her consent to sexual activity. What counts as a good reason to conclude that his belief is reasonable? In this section, we will attempt to establish the role of social convention in answering this question.

It is useful to begin with the question of how one determines the reasonableness of a man's belief about consent to sexual activity in 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 Morgan 23 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.


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 conviction of the "lucky defendant" whose belief in consent, however unreasonable, 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 explanation would indicate that his belief is reasonable. What kind of explanation will suffice?

Perhaps progress in answering this question can be made by thinking 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, 'Tll 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 behavior 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


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 convention he cites might be very different from what he understands it to be here and now. Conventions can change over time, and the conventions 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.


facts, but conclusions about reasonableness are at least partly judgments of value. There is a deep philosophical problem in understanding 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 controversial 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 circumstances 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. 2s 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 herselfi This experience might be said to be "beyond the ken of the averagejuror". 27

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. 26 See, e.g., Model Penal Code: Sec. 2.01(2) (d). 27 This is one requirement for expert testimony. See Mason Ladd, 'Expert Testimony', Vanderbilt Law Review 5 (1952): 414--31,418.


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"78

H o w 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 testimony 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. 3°

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). 3o See, e.g., State v. Kelly, 478 A~2d 364 (N.J. 1984).


(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 "duster of typical behaviors", is evidence 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 formulate 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 necessary 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.


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 condemned 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 convenfon provides evidence that the belief is reasonable.

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 percentage 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 customers 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 convention 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 convention 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.


If this conclusion is correct, anyone who is interested in the general problem of how beliefs are shown to be reasonable should be interested in understanding social conventions. Unfortunately, meaningful generalizations about social conventions are almost impossible to formulate, since very different conventions operate in different circumstances. For example, consider the question of whether an agreement 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 someone carefully and mefculously 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 m i n d s 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 parfes 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


substituting this convention for the myriad alternative convenvions that currently govern agreements in American society. ~lhy, 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 reasonable 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

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 go far enough [in allowing convictions for rape]. Why should there have to be a "no"? . . . When there is no question that her partner can enforce his will if he has to, why should silence be taken as equivalent to consent? Why should the law in effect presume the existence of consent in the absence of an explicit "no"? . . . Citizens may not presume a privilege to intrude upon the rights of others, but rather must respect the autonomy of each person and stand clear in the absence of a direct, affirmative manifestation of consent. On this basis, anything less than an explicit "yes" should not count as consent. 31

In support o f his view, Schulhofer cites with approval a "recent Washington statute [that] captures this approach: 'Consent' means that at the time of the act of sexual intercourse there are actual words or conduct indicating freely given agreement to have sexual intercourse" . 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 verbalized? 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 Schulbofer, 'The Gender Question in Criminal Law', in Ellen Paul, Fred Miller, and Jeffrey Paul (eds.), Crime, Culpability, and Rein@ (Oxford: Basil Blackwell, 1990), pp. 105--137, 133. 32 Id., p. 133 (citing Wash. Code Ann. sec. 9A.010(6) (1981)).


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" participation become a "direct" manifestation of consent? Even with Schul- hofer's gloss, the statute is not very helpful in answering these questions.

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, normative, 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.


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 misunderstanding 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 problems 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 conventionally express consent in this way, punishing this defendant can be justified only on Holmes's view that "[p]ublic 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 wonld be unreasonable in light of the convention that describes the way consent is expressed. Unfortunately, as so construed, Schnlhofer'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: Litde, Brown and Co., 1963), p. 41.


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 uninformafve. What else could "no" mean other than no? More plausibly, this claim is about the social conventions by which nonconsent is expressed. That is, when a woman says the word "no", she intends to express her lack of consent, and it would be unreasonable for a man to believe otherwise. As so construed, this claim is empirical, 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-


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 recommendatons. 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 social conventions invoMng courtship. Do women give nonexplicit encouragement to men in courtship settings not involving sexual intercourse? If so, how is this encouragement communicated, and what is the risk that a man will make a mistake of fact about whether he has been encouraged? Later we will proceed to the more narrow question of whether women give nonexplicit consent to sex and the attendant risks of mistake. By "nonexplicit', we mean both nonverbal and verbally indirect conduct.

No one should be surprised that the empirical evidence confirms that women give nonexplicit consent to such courtship rituals as whether they want to be approached by a particular man. Monica Moore and Diana Butler documented fifty-two "nonverbal solicitation behaviors" that women use in "social contexts such as singles' bars and the university snack bar". 36 These behaviors included "glancing, primp-

36 Monica Moore and Diana Butler, 'Predictive Aspects of Nonverbal Courtship Behavior in Women', Serniotica 76 (1989): 205-15, 206.


ing, smiling, laughing, nodding, kissing, requesting aid, touching, .and caressing". 37 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 m a n y 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 invitauon.

These behaviors do not appear random. An earlier study by Moore demonstrated that, as contexts changed, women engaged in nonverbal solicitauon behaviors with greater or lesser frequency? ° 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 meeung (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 "approachable" in the Moore and Butler study did not accept all male invitations? 2 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. (17 < than 0.001). 42 See Moore and Butler, 210.


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 "influence" 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". ~5

Proceptive behaviors include explicit as well as nonexplicit signals, but fewer than one-quarter of the women who indicated their willingness 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". 4v 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 of Sex Research 23 (1987): 455-80. 44 Id., 462.

4s Icl., 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 suggesting 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).


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 nonexphcit 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, s° However, most of the women in the Perper and Weis study described what the researchers called an "incomplete rejection" strategy, sl 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). 49 Id., 463. 50 Id., 472 (Table 3). 51 Id., 471.

1 18 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". s3 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 rejection 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

s2 IcI. 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). s3 Perper and Weis, supra fn. 43, 471 (quoting one of the essayists). 54 Id., 476 (noting that "the question warrants detailed research"). ss Id. 470 (themes IV 5 & II 6 & 7).


sex. s6 Interpreting rape as unwanted rather than as nonconsensual sex will (perhaps self-consciously) result in an exponential increase in the incidence of rape. s7 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. s8

The following example illustrates the difference between nonconsensual 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-

s6 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). ~7 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"). s8 See Nell 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.

120 Douglas N. Husak and George C. Thomas Il l

sented to unwanted sex. Since (2) represents her volition, ~9 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. 6° 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". 61 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 o f harm are voluntary. 62 So, in

59 See Harry Frankfurt, The Importance of What We Care About (Cambridge: Cambridge University Press, 1988). 6o 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 intercourse 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".) 61 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: Mdine Atherton, 1972), pp. 30-48, 32.


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 incomplete rejection strategy but never to the point of objecting or physically 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.


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. 65 And 60.8% of the sexually experienced women in this study stated that they had said "no" when they intended to have sex. 66 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 m e a n s i t " . 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

6s 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. 6v 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. 6s Id., p. 876 (Table 2). Forty-nine percent said fear of appearing promiscuous was moderately to very important.


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 presents 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 reasonableness 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 requirement 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 /d., p. 875 (Table 1) (4.51% of variance explained by fear of appearing promiscuous; 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'slnstitutes *60 (1661). 71 Reidhead v. State, 250 P. 366, 367 (Ariz. 1926).


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. TM 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 reasonableness 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. 7s 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. tel. 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 Law Review 26 (1989): 21--71, 37--41. 75 See Beverley Balos and Mary Louise Fellows, 'Guilty of the Crime of Trust:


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 t o 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 that the social convention is roughly as we have described it. 77 They are unlikely to insist

Nonstranger Rape', Minnesota Law Review 75 (1991): 599--618 (arguing that the relationship between M and F would create a heightened duty to obtain an explicit indication of consent). 76 Curley, 'Excusing Rape', 346. 77 See Susan Estrich, Real Rape (Cambridge: Harvard University Press, 1987), p. 100.


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". TM

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 educafonal 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 exisfng 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, Rutgers University, New Brunswick, NJ 08903

Law School, Rutgers University, 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.

Documents

Date rape, social convention, and reasonable mistakes