Christopher Hurtado

Susan Estrich argues in chapter six of “Real Rape” that “simple rape is real rape” (881). Simple rape is distinguished from aggravated rape in that aggravated rape is defined as committed through conscious coercion, whereas simple rape is defined as committed by negligence.

Estrich cites British rape case, Director of Public Prosecutions v Morgan, to demonstrate significant differences between American and British definitions of rape. The British look to the man’s mental state in committing rape, while America has almost completely dismissed the intent requirement. Morgan held that if a man believes that a woman has consented to sex, he cannot be convicted of rape, no matter how unreasonable his belief (875). Estrich argues that this is problematic on many levels. She argues that by dismissing the intent requirement, women, not men, will are on trial and the woman’s sexual history is called into question. She argues further that, the “issue to be determined is not whether the man is a rapist, but whether the woman was raped,” and that acquittal “signals that the prosecution has failed to prove the woman’s sexual violation—her innocence—beyond a reasonable doubt” (877). Finally, Estrich argues that without an intent requirement, the resistance requirement is generally used and that a woman’s resistance, or lack thereof, in a rape is no clear indication of whether she consents to sex since she may feel that resistance is futile.

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Introduction

What is the proper relationship between law and morality? This is a political question. In order to answer it, we must first answer the metaphysical, epistemological and ethical questions underlying it: What is law? What is morality? How do we know? Ethics is the central branch of philosophy and its raison d’être. It tells us what is right for us to do. But in order to know what is right for us to do, we must first know what kind of beings we are. The purpose of the science of ethics is to discover and define a code of values to guide our choices and actions—the choices and actions that determine the purpose and the course of our life.1 Ethics tells us how we should treat one another, giving rise to politics, the branch of philosophy that defines the principles of a proper social system.2 The key political issue of our time is freedom versus statism.3 This, I will argue, is the issue at stake in the question of the proper relationship between law and morality and freedom is the only rational choice.

If we are in what Rand called a “malevolent universe,”4 then by our very nature we are “helpless and doomed … success, happiness and achievement are impossible to [us] …emergencies, disasters, catastrophes are the norm of [our] life … and [our] primary goal is to combat them.”5 In this case, it hardly matters what we do. Regardless, the universe will conspire against us to defeat our purposes. If, on the other hand, we are in what Rand called a “benevolent universe,” 6 then “ideas matter . . . . That ideas matter means that knowledge matters, that truth matters, that one’s mind matters.”7 In this case, there are objective answers to the above questions and the answers are knowable.

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If two people commit burglary together, and one intentionally kills the owner, should the other burglar be found guilty of felony murder if this other burglar did not know that the killer was armed? Why or why not?

If the law states that anyone who is an accomplice to someone who commits murder during the course of a burglary, then the burglar who was an accomplice in the burglary to the killer should be found guilty of felony murder, regardless of whether he knew the killer was armed. 7. Suppose that a truck driver runs over a cardboard box in the middle of the road, just because it is too much trouble to avoid it. Unfortunately, a child is playing in the box, and the child is killed. Should the truck driver be found guilty of murder or manslaughter? What if the truck was stolen or contained illegal cargo, so the truck driver was committing a felony at the time? Then should the driver have been found guilty of murder or manslaughter? Why or why not?

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