MRAs in India are protesting a proposed marital rape law. And Men’s Rights Redditors are on their side

It’s not uncommon here to have overlapping offences. That crops up a lot whenever there’s a moral panic about an issue. So, for example, we have at least three separate laws banning people from carrying knives.

Sometimes laws are enacted that target a specific issue, even if really the ‘mischief’ (as we quaintly put it) could have been addressed by an existing offence. Like when they enacted some terrorism legislation here, a lot of us commented that we never realised planting bombs must have been legal before.

(This is one of my favourite “Well, show me where it says I can’t” examples https://www.legislation.gov.uk/ukpga/1998/7/crossheading/nuclear-explosions )

Oftentimes though that’s either to avoid any lacunas in the law that new technology might create, or to impose a specific sentencing regime for that particular offence.

There’s also, in common law countries, a doctrine called ‘implied repeal’. The idea there is, if a new law seems to cover the same ground as an existing one, we assume the earlier one is no longer in force.

That can create ambiguity though, so now criminal legislation tends to have sections dealing with ‘transitional arrangements’. That will set out exactly what someone should be charged with depending on what date they committed the offence.

That’s to avoid ‘retroactive legislation’ which is generally not allowed under both common law and the ECHR (although, as you might have guessed, again it’s not always straight forward; cf the Nuremberg Trials). The general rule though is you can only be prosecuted, and sentenced, based on the law at the time you committed the offence.

Hope that helps.

Like I say, this is something that does tax lawyers and the courts, so that was a very good question. Happy to address any follow up queries you may have.

It occurred to me right after sending my last message that I was perhaps giving the ranter too much credit by expecting him to know that (apparently) marital rapists were previously convicted for things other than rape itself. Also might be of interest to him (and all other men) that even after marital rape was criminalised, according to the legislation, only girls and women could be raped, so it’s probably good that laws are updated.

I should probably just try to reread up on how Finnish legislation works. I just today read that sometimes, when you’re reporting on someone making threats on your life and wellbeing, the police might advice you to report for defamation instead of “illegal threats”, even though getting a conviction for the former is a lot harder than for the latter.

… would probably help if my last run-in with this stuff wasn’t just about copyright laws in library settings, where some of the reading we had was like “well strictly speaking this thing violates copyright, but the practice benefits everyone so you’re not going to get into trouble if you do this”.

I assume the citizen’s initiative (Suostumus 2018) is not the best source for this, but it does have some information.
https://www.kansalaisaloite.fi/fi/aloite/3209

Basically, what I understand from that, there are lots of reasons why basically demanding “sufficient” resistance from the victim is unfair. There are international agreements that support the consent approach and there is such legislation in several countries already.

What I remember reading about this conversation a few years back, a lot of concerned people were worried about “he said – she said” scenarios, and one rebuttal I read said that’s already an issue, but most people don’t suggest we roll back on what counts as rape just because it’s hard to know what happened after the fact. Something about the idea not being that if you tell the police after a sexual encounter that you said “no” once, they’ll throw the other person to jail, it’s more about changing the way people view sexual ineractions and what to take into account to make sure everyone has a good time.

We also have ‘conditional consent’ here.

An obvious example is someone who would only consent if a condom was used. So ‘stealthing’ can turn what seemed like willing sex into rape. But then it can get a bit messy. There have been cases where people have not realised the sex of their partner; and that has been a subsequent deal breaker. So consider how that might affect trans people. Although the main case on this was very weird. The defendant said they were so shy the victim would need to wear a blindfold. Then they penetrated with a strap-on. So that was clearly an attempt to mislead and the second element was pretty easy to prove.

There are also some circumstances where the burden of proof as to consent gets reversed. But see here for more details on all that and more.

https://www.cps.gov.uk/legal-guidance/rape-and-sexual-offences-chapter-6-consent

But, legally speaking, you can ‘intend’ to do something even if it’s the last thing on earth you *wanted* to do. To over simplify, you ‘intend’ to do something if it’s the natural and *objectively* foreseeable consequence of your actions. That objective bit is important. It’s what an average reasonable person would foresee; so it matters not if you personally didn’t anticipate it.

But to get to your specific point, we sometimes divide crimes into specific intent offences, and basic offence offences.

A specific intent case is where you intended the outcome.

A basic intent offence is where you might not have intended the outcome, but took the risk that it might come about. Legislation will often use phrases like ‘reckless’ or ‘malicious’. (which is another legal word that doesn’t mean the same is its colloquial use. it’s a synonym for reckless.

So that seems to be what’s going on in the example you give.

There’s a specific offence version where you know there’s no consent but still go ahead. So you have intended that you rape.

Then there’s a basic intent version where you are indifferent as to whether there’s consent. So you are taking the risk it might be rape.

In a lot of common-law jurisdictions the law *doesn’t* take the ‘intent isn’t magic’ approach.

Intent is everything because sentencing is based on culpability. So you are punished for your conduct, not the outcome.

To give an example. I try to shoot you but miss. Even if you didn’t even know I’d tried to kill you, I can still be convicted of attempted murder. Because it’s my voluntary conduct I’m being punished for. Whereas I could be negligent in my cooking and kill ten party guests through food poisoning, but only be guilty of manslaughter and thus receive a lower sentence than the first example because I didn’t intend to kill anyone. I was however reckless.

I would ramble more but I have a Zoom. But here’s a link to a bit more on that.

https://www.lawteacher.net/lectures/criminal-law/committing-an-offence/mens-rea/