6-4-87 There is only one more lecture to give [in Sex, Ethics, and the Law]: tomorrow morning. Today we discussed rape. Believe it or not, rape raises several philosophical questions. Almost everyone admits that rape ought to be criminalized, but here are some issues that generate dispute: (1) Should husbands be chargeable with rape against their wives? (2) If the answer to that question is “no,” does it matter that the parties are legally married, but have been separated for some time? (3) What if, on a date, a woman says “no” to intercourse, but the man takes this as coyness and proceeds to have sex with her anyway, against her will? Is that rape? (4) As a matter of evidence, must a woman resist to her utmost in order to make out a case of rape? (5) What is the best explanation for the existence of statutory rape laws? Are they designed, as some feminists theorize, to preserve a pool of young, chaste women for men? Or is there a legitimate reason for them? (6) As a matter of evidence, is it relevant to the issue of consent that the woman has consented to the alleged rapist on previous occasions?
Obviously, we didn’t have time to address all of these issues. We did, however, have a lengthy debate on (6), the question of relevance. Here’s the situation that I described. M and F have consensual intercourse four times over a period of weeks. One night, F says “no” to M’s advances, but M persists in having intercourse with her. Later, F charges M with rape. At trial, the question is whether F consented to having intercourse with M on occasion #5, for consent is a defense to rape. Is it relevant to this question, I asked the students, that F consented to intercourse with M on four previous occasions? To my surprise, most of the students said “no,” some of them vehemently. But this strikes me as the wrong theoretical move. While I agree with the students that evidence of the previous consensual acts should not be admitted at trial, the reason is that it’s unduly prejudicial, not that it’s irrelevant. Jurors might think that since F consented once, she consented to all future intercourse; or they might attempt to “punish” her for being promiscuous or engaging in premarital sex.
Thus, almost everyone in the class agreed that as a practical matter, evidence of prior acts of intercourse should not be admitted. We differed, however, on the theoretical basis for that exclusion. In my view, the evidence is relevant, since it has some tendency, however minimal, to establish the proposition in issue (namely, “Did F consent to intercourse with M on occasion #5?”), but should be excluded anyway on grounds of undue prejudice. To the students, the evidence is irrelevant. This, naturally, led to a discussion of relevance (in the law and generally) and to a critique of the feminist position on rape law. Although I’m a radical feminist, I said, I reject some of the standard feminist positions on philosophical grounds. Feminists should be forthright about things and admit that previous acts of consensual intercourse are relevant; but they should then insist that the evidence be excluded on grounds of undue prejudice. In effect, I’m trying to strengthen the feminist position. [I ended up writing a book and many articles on rape. I also edited an anthology on rape.]