February 26, 2016
ABC News Feature, Consent On Campus
It was curious watching the 17-minute presentation at Pennsylvania State University on Nightline. Rape is a crime under American law. Crime under American jurisprudence has two elements, an act, actus reus, and an idea, mens rea, often called intent. The word intent was never mentioned. I was paying attention listening for it. If the matter is a crime, the suspect must have the requisite intent. That is what made/makes rape cases so difficult, and why there were, and are, so many non prosecutions. But under this new system intent is not a concern.
Consent is the concern. Consent is given by the person acted upon, agreeing to be acted upon. The actor, if criminal the suspect, must obtain consent, so that he or she does not have any criminal intent. That shifted the weight of whether it was crime from the mind of the suspect into the mind of the victim. Without consent it is a crime. No matter what the suspect has in his or her mind. It also facilitates proving crime. What is or was in a suspect's mind is not obvious. But consent can be obvious. But consent raises other difficulties as discussed on that ABC feature, e.g., how long is the consent good for?
No mention of intent
changing 200 years of common law, and American Jurisprudence