Wendy Murphy, an adjunct professor of sexual violence law at New England Law-Boston, is recommending that women should kill their rapists, but public interest law professor John Banzhaf says she and those women might follow her legal advice would be wrong most of the time because most campus so-called “date rapes” aren’t really rapes, so women cannot lawfully use deadly force in defense.
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In a tweet, Wendy 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 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),” Wendy 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 Wendy Murphy’s suggestion, in most cases women claiming to be raped on campus would go to prison (not jail). Here’s why.
It is true that, in many states, a person may use force, up to and including 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.
For example, Article 35.15 of the New York Penal Law provides that “2. A person may not use deadly physical force upon another person under circumstances specified in subdivision one unless: (b) He or she REASONABLY BELIEVES that such other person is committing or attempting to commit a kidnapping, FORCIBLE RAPE, forcible criminal sexual act or robbery; [emphasis added]
The important qualification or limitation to Wendy Murphy’s claims is that 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, is irrelevant, he says.
Indeed, in most states, consent is irrelevant. 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 is not 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 is used) 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. And that’s not just the opinion of a fully tenured professor of law at a top-ranked law school contrasted with the views of adjunct professor at an unranked law school.
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 liberal 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 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 school having sex, notes public interest law professor John Banzhaf.
Despite seemingly endless repetition of this “no means no” mantra, a Times article on why sexual assault laws should change now 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.
So, contrary to Wendy 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.