Actus Reus Non Facit Reum Nisi Mens Sit Rea (Without a Guilty Mind There is No Crime)


This term brings up the issue of the perpetrators guilt. If they are unaware of having committed an act of sexual assault, can they be held fully liable for their actions?
Douglas N. Husak and George C. Thomas make a distinction between an act of rape and a crime of rape. Any act of sex without the consent of the second party is an act of rape. An act of rape only becomes a crime of rape when the perpetrator has intent. This means that the perpetrator is aware that consent has not been given, but continues anyway.
This is important because it expands on the importance of the effectiveness of consent. If the perpetrator is unaware that they are committing an act of rape, they cannot be held fully liable for their actions. This is not to say that someone who does not understand the concept of rape is not liable, though. Someone who commits an act of rape and justifies it by saying "she was asking for it" or "she wanted it" when the victim clearly did not, has committed a crime of rape. This is because they were fully aware of their actions, regardless of their personal perception of consent. If the perpetrator has no recollection of the rape, it is not a crime of rape. If there is clear reason for the perpetrator to believe the sex was consensual, it is not a crime of rape. In both cases the perpetrator was lacking intent.