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Arabella Moss
4th year
Does the Criminal Court Offer a Refuge from Patriarchy or is it a Site of its Reproduction?
*Content advice: contains references to and discussions of rape*

Traditional interpretations of legal doctrine have seen mens rea as a key element in the determination of rape. Here it is argued that this view is problematic. Bringing into dialogue Hilary Putnam’s concept of ‘semantic externalism’ (1973) and Miranda Fricker’s concept of ‘hermeneutical injustice’ (2007), it is suggested that, because the intelligibility of a woman’s claim is structured by a specific legal framework that restricts the boundaries of what can be comprehended, the legal paradigm of rape constitutes a patriarchal failure. By placing significance on the perpetrator’s understanding of the act, the criminality of rape becomes tied to the perpetrator’s perception of the victim's desires, not the harm caused to the victim. The problem is that when a man accused of rape wrongly but sincerely believes that a woman consented to sex, he may have a defence of mistaken belief and therefore fail to meet the mens rea of rape. This disconnect creates a hermeneutical gap between the victim’s experience and the law’s interpretation of it, rendering the victim’s testimony conceptually incoherent: a woman may be subject to rape but not by an individual legally recognised as her rapist.
Eva Szilagyi-Nagy - Fentanyl.jpg
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