Barely Legally

Confessions of a Moot Court Bailiff

Summer Re-runs

What, already? Didn’t we just see this episode? College guy writes some very ignorant rape apology piece in his school newspaper:

Only 6.6 percent of women who smoke will develop lung cancer. A woman who smokes is more than three times as likely to be sexually assaulted than she is to develop lung cancer. We turn our noses up at smokers and just made our campus tobacco-free. Yet, nothing is done about sexual assault, short of blaming the “attacker,” a guy who was likely as drunk as his “victim.” We do everything we can to mitigate the small risk of lung cancer, but nothing at all to mitigate the much greater risk of sexual assault.

We all make mistakes, and we all want to be understood, consoled and forgiven, but there’s a double standard here, and it needs to be addressed.

If drunk women who have sex are able to claim “rape,” why aren’t drunk men alleviated of responsibility for the poor decisions they make?

Yeah, why do women get to be sexually assaulted when they get drunk, and why do men get to be responsible for sexually assaulting women when they get drunk? What’s up with that? Well, that’s a fantastically stupid question I’m happy to overexplain, Robert Monteleone of the University of Arizona! (Seen here telling people to stop “trying” to be offended.)

Well, let’s start small.

Not All Mens Rea

Most of the time, when we’re talking about crimes, there are two parts: the guilty act, and the guilty mind. On TV, on the Law and Orders, they’re always talking about Murder One this and Manslaughter that. But someone’s dead, and the guest star of the week is the prime suspect, so really, what’s the big deal? How can there be different kinds of crimes for killing folks?

Well, the guilty act is the killing a person. That doesn’t change.

The guilty mind comes in a bunch of different flavors:

  1. intentionally
  2. knowingly
  3. recklessly
  4. negligently

These flavors are the difference between murder and manslaughter. It isn’t whether your victim is dead; it’s whether you intended to kill them, or whether you injured them so recklessly that they subsequently died. Same act (killing), different crimes based on your mental state (intentional vs. reckless).

What Does it Mens

Intentionally is what it sounds like. I reach out my hand, I wrap my fingers around your phone, I put your phone in my pocket, and I walk away. I meant to do that. It was certain to happen when I did something.

Knowingly is a little less certain. I don’t know exactly who owns the rights to Frozen, whether that’s a Pixar or a Disney thing (didn’t one of them buy the other a while back?), but I know it’s copyrighted and I shouldn’t be pirating it.

Recklessly is knowing what you’re doing, but not really caring about the consequences. I’m riding my bike down the sidewalk very fast, pretty sure that I can swerve to avoid everyone.

Negligently is not knowing what you’re doing, and not being aware of the possible consequences. For example, I’m texting while riding my bike, and I don’t realize that I’m even on the sidewalk.

So if the law says that you’re only guilty of X if you intentionally do Y, then you’re not guilty of X if you recklessly do Y. Or negligently do Y. Or accidentally do Y.

Twist Ending

Not every crime has a requisite mental state. You can be guilty of certain specific crimes irrespective of your intent or negligence. In New York, one of those crimes is rape. You don’t have to recklessly or negligently have sex with someone without their consent; the crime is committed if the person you have sex with didn’t consent. This concept is called strict liability – if it happened, you’re guilty regardless of your intent.

In Arizona, however, rape is actually a crime of intent. And in some states, being drunk is a defense to intentional acts. Which sort of makes sense. You can’t be deliberate and (literally) sober-minded about your actions when you’re intoxicated, right? So if a guy gets drunk and sexually assaults someone, that can’t have been intentional! It was the alcohol’s fault! Sweet vindication for Robert Monteleone of the University of Arizona.

Double secret twist ending: in Arizona, if you get yourself drunk, then your intoxication isn’t a defense for your lack of intent.

The Contemptuous Denouement

Aw, Robert. I know it’s so unfair that society blames the real victims here: men who just want to get drunk and have a good time with their friends. Even if some of those good times are accidentally marred by unfortunate… unpleasantness. Right bro? But I have some tips for guys who want to avoid being victimized in this totally unfair way.

For instance: don’t go to parties where you know that you can get into trouble. If you know that girls and alcohol are involved, don’t let yourself become a victim of committing sexual assault. It’s so unfair how getting yourself hammered won’t absolve you of rape, but you just have to recognize that and plan for it.

And try to shrug off the victim-blaming. There are some who will callously deride you as “asking for it” just for being a drunk guy at a party. Try to stay strong and recognize that you’re absolutely entitled to every woman’s body at all times. With a little preparation, you can keep yourself safe, guys.

(Seriously, no more of these op-eds; I’m dying inside.)