Female students shouldn’t follow the recent advice of a law professor to use deadly force and kill men to protect themselves from campus rapes because most date rapes aren’t legally “rapes,” and deadly force can’t be used to prevent them or for revenge afterwards, says public interest law professor John Banzhaf.
It’s irresponsible and dangerous for a law professor to be telling female students that it’s legal to kill their rapists because it’s supposedly “self-defense to kill a rapist,” and that “if campus victims knew they had a right to kill, schools would FINALLY do a good job preventing rape, to avoid all the dead bodies,” says Banzhaf. More succinctly she tweeted “Message to rapists: don’t rape and you won’t die.”
But, as others, including the New York Times, have pointed out, many women wrongly believe – often because this is what they have been taught at college or from public service announcements – that sex without their consent constitutes rape, but acting upon this belief by using deadly force could result in their conviction for a felony and a long stretch in a prison.
Banzhaf notes that, in the great majority of states, it is not rape if a male has intercourse with a female who hasn’t given her consent, or even if she had in fact said “no” or “don’t” or “stop,” because it’s only rape under the law if he uses deadly force or the threat of force.
It appears that the overwhelming majority of these cases, which universities are called upon the deal with, are date rapes where the male isn’t even accused of using force or the threat of force. Rather it is claimed that the woman simply did not consent.
In some she may claim that she said “no,” but rarely is there a claim that he used the type or amount of force necessary for the act to constitute rape under the law of most states.
In some cases investigated and adjudicated by colleges, it is claimed that the intercourse constituted rape because the woman was intoxicated, but in most states that also does not make the act a rape unless she was beyond mere intoxicated and was literally incapacitated.
So all-too-typical cases where a female student is said to have slurred her speech, was unsteady on her feet, etc. would not render her consent invalid, says Banzhaf, noting that the females in “Girls Gone Wild” who exposed themselves were held to have consented even though many were obviously very drunk at the time.
Wendy Murphy, an adjunct professor at New England Law-Boston, has just recommended on Twitter that women should kill their rapists, but Banzhaf says she and those women might follow her legal advice would be wrong much of the time because most so-called “date rapes” aren’t really rapes, so women cannot lawfully use deadly force in defense.
In a tweet, Murphy said: “In many states, it is considered self-defense to kill a rapist. Women don’t know this about their rights. They need to be educated & trained. If campus victims knew they had a right to kill, schools would FINALLY do a good job preventing rape, to avoid all the dead bodies.”
When it was suggested to her in another Twitter post that “that schools are broadening the definition of rape/sexual assault to include things that are widely considered acceptable forms of romantic advancement (i.e. reading body language and trying to kiss someone),” Murphy doubled down.
In response to this observation she claimed “self-defense laws apply on campus bc crimes on campus are prosecutable in real world. Crimes are also ‘student misconduct’ offenses under civil rights laws on campus under #TitleIV & #TitleIX So you might get expelled for killing in self-defense, but you won’t go to jail.”
Banzhaf, a champion of women’s rights whose suggestion for dealing with campus rapes has been featured in the Chronicle of Higher Education, U.S. News, Washington Examiner, National Public Radio, CNN, New York Times, Inside Higher Ed, and in other respected media outlets, and singled out for praise by U.S. Secretary of Education Betsy Devos, says that although there is a germ of truth in Murphy’s suggestion, in most cases college women who kill a male claiming that he was raping them would go to prison (not jail). Here’s why.
It is true that, in many states, a person is sometimes permitted to use deadly force if it appears to be reasonably necessary to prevent a forcible rape. In other words, a woman in many states may in fact legally kill a man trying to forcibly rape her if it is reasonably necessary to do so.
The important qualification or limitation to Murphy’s claims is that in most jurisdictions the sexual act must reasonably appear to be a forcible rape under the criminal laws of the relevant state, not just under whatever definitions and regulations a college might adopt, notes Banzhaf.
The fact that a college or university may consider it a rape – and indeed may have told students that it constitutes rape – if the sex is committed without a woman’s consent, and/or in violation of its “yes-means-yes” rules which require affirmative consent to each step in the escalating sexual activity, is irrelevant, he says.
Indeed, in most states, consent itself is irrelevant in terms of the crime of rape. Having sexual intercourse with a woman who has not given her consent, or even after she clearly says “no,” doesn’t necessary constitute rape.
More precisely, in the majority of states, the crime of rape in most cases of an adult who isn’t unconscious (not just inebriated) requires proof beyond a reasonable doubt that the defendant used force or the threat of force. In other words, the mere fact that the complainant did not “consent” (by whatever definition the college uses) is not enough, says Banzhaf.
Indeed, if force or the threat of force was not used, even the fact that the complainant said “no!” or “don’t!” or “I don’t consent” doesn’t make it rape in the absence of the use of force or the threat of force.
For example, law professor Deborah Tuerkheimer – who teaches at Northwestern and strongly opposes rape – wrote the following in an article entitled “We Preach ‘No Means No’ for Sex, But That’s Not What the Law Says”:
“Over half the states have a ‘use of force’ requirement in order to prove rape. . . .The first-year law students I teach – smart, insightful, idealistic – have come of age hearing that “no means no” when it comes to sex. They are almost always stunned to learn that, in most states, the legal definition of rape still requires the use of physical force. In other words, a verbal “no” isn’t always enough.”
Even the New York Times was forced to admit what many lawyers have known for a long time – most campus rapes reported by women are not rapes at all.
Whatever standard colleges may adopt to define consent in rape cases for campus disciplinary cases is completely irrelevant because sexual intercourse, even if there is no consent, or if the woman clearly says “no,” doesn’t constitute rape in most states.
So, as the Times has noted, women are bombarded with ads and other educational materials telling them that “no means no,” or that “if she doesn’t consent, or if she can’t consent, it’s rape.” as a White House video explains it.
But that could give women a false sense of security, especially once they leave the security bubble of two students at the same college or university having sex, notes Banzhaf.
Despite seemingly endless repetition of this “no means no” mantra, a Times article on why sexual assault laws should change concludes that “this message often doesn’t line up with legal reality. A majority of states still erect a far higher barrier to prosecution and conviction by relying on the concept of force in defining rape . . . in more than half of the 50 states, a judge or jury must find that a person used force to find him or her guilty of rape.”
So probably the majority of situations in which a female student claims she was raped because she didn’t consent, or even that she clearly said “no,” could not be successfully prosecuted, and she would not therefore be legally justified in using deadly force to kill the alleged rapist.
Thus, contrary to Murphy’s claim, the female probably would be sent to prison (not jail) for killing the male student who had sex with her without her consent, concludes Banzhaf.