Abstract

Moral responsibility theorists and legal theorists both worry about what negligence is, and how it might be a ground of blameworthiness. In this paper I argue that negligence suitably understood, can be an appropriate grounds for mens rea in rape cases. I am interested in cases where someone continues with sex in the mistaken belief that the other person consents. Such a mistaken belief is often unreasonable: a wilfully blind agent, one who deliberately ignores evidence that there is no consent, is clearly not exculpated by his ignorance. However, there may be circumstances in which a man’s mistaken belief in consent is reasonable in the circumstances, then he is not culpable. Thus it is important to be clear about what we mean by a reasonable mistake. Many critics (e.g. Duff, Baron and others) have argued that it is not possible to make a reasonable mistake about consent, that any such mistake must involve culpable carelessness. Consent is so important that we should always double check. Not to do so is reckless, and in that case there is clearly culpability. In this paper I argue that it is possible to make a mistake that is reasonable, at least in one sense. Someone in the grip of sexist ideology might not understand how important consent is, and not through carelessness, but through sexist ideology that they have non-culpably and non-voluntarily absorbed. In that case it is not obvious that the man is culpable. I go on to argue that so far as the law is concerned, there is good reason to hold that even those who have ‘reasonable’ beliefs culpable. Having a reasonable belief in consent may be, but is not always exculpatory. We usually think a reasonable mistake does not count as negligence because a reasonable mistake is not failing to know something that you should have known. I argue that we should understand negligence—not knowing something you should have known—in a moralized sense, so that people who are ignorant through being ideologically blinded can be held to have the mens rea requisite for rape conviction.