David is a big, strong guy. He plays football, and he has a reputation for going through a lot of girlfriends. Vanessa is petite, 5’ 2” and 105 pounds. David and Vanessa have been dating for three weeks. On the Saturday in question, David feels ready to take their relationship to the next level. On their date that night, they kiss and fondle each other through their clothing as they had before. Eventually, both are almost naked and David performs oral sex on Vanessa. During the oral sex, Vanessa exclaims “Don’t stop!” David takes this as a request to proceed to sexual intercourse. He moves up till his hips are even with hers. He puts his penis in her vagina. Vanessa breathes out “No”, but her voice is muffled by his weight on top of her. David doesn’t hear her. Vanessa says “no” a second time, and David understands that she is uncomfortable. He shifts his weight, but he doesn’t pull out. “David” she protests, annoyed, but he doesn’t respond. He seems far away mentally, in his own world. He is on top of her, panting, with his eyes closed and his heavy hands on her shoulders. He is moving faster. Vanessa is shocked. She cannot find her voice; there is a hard lump in her throat. She cannot believe this is happening to her. They had not agreed to intercourse. She did not want intercourse. She tries to free her hips and roll out from under him, but he is just too big and heavy for her to move him. His fingers are digging into her shoulders, and she starts to cry. He is oblivious to this. He climaxes quickly and rolls off, apologizing. The whole thing might have been less than a minute, but to Vanessa it felt like a long time. She is still crying, and freed from his weight, rushes to the bathroom, locks the door, and through the door, tells David to leave. Stunned and confused, David tries to calm her. He pleads with her to come out, but to no avail. After several exasperating minutes, he leaves. The next morning, Vanessa reports to police that she has been raped.
How would such a case be resolved in court? Would it be called rape? What does the crime of rape involve after all? Would the fact that Vanessa felt afraid, and did not actually consent, be enough to convict? Or, would David’s belief that Vanessa was consenting result in an acquittal? Would David even be allowed to assert his mistaken belief in court? Under these facts, David truly believed that Vanessa wanted to have sexual intercourse with him, but he was mistaken. Does this mean that Vanessa was not raped?
This fraught area concerns the criminal law doctrine of Mistake of Fact. Under this doctrine, a defendant is relieved of culpability if his mistake negates the requisite mens rea. A typical example is Mistake of Fact in larceny. If the defendant is mistaken about the ownership of the goods and thinks they are his own and not another’s, he will not be guilty of larceny because he lacks the mens rea to take someone else’s property. In rape law generally, and in David’s case in particular, it emerges as a mistake of fact as to consent.
One might think, since rape is crime of long standing, and one of the most abhorrent, that recognizing and defining it would not be difficult. Yet a survey of American law reveals that, even in 2011, there is no single answer. In fact, the approach to a case like David’s varies significantly from state to state. Rather, statutes and jurisprudence concerning the mens rea required are highly divergent and even contradictory.  Such inconsistency is problematic, both theoretically and practically. Theoretically, because the inconsistency undermines our confidence in mens rea as the sine qua non of criminal culpability, in even the most serious crimes. Practical problems result because it provides only erratic protection for defendants and for victims within the courts and in fact provides no guidance outside the courts for those who wish to conform their conduct to the law or for those who seek the law’s protection. An examination of the approaches in three states in this contested area, Mistake of Fact as to Consent, reveals how significant this variance is, even as to the central characteristics of rape.
The Massachusetts statute prohibits rape, stating, “Whoever has sexual intercourse . . . and compels such person to submit by force and against his will, . . . shall be punished by imprisonment in the state prison for not more than twenty years.”
In David’s case, this means that the prosecutor would have to prove that Vanessa did not, in fact, consent and that sexual intercourse occurred with force. But what about David’s mistaken belief that Vanessa was consenting? In Massachusetts, general intent crimes require only that defendant intends to commit the act; he does not need to possess any additional knowledge, or motive, or future intent. Rape is a general intent crime, so the prosecutor would only have to prove that David intended to have intercourse. The prosecutor would not have to prove that David knew, or even suspected, that Vanessa was not consenting. In fact, David’s state of mind as to Vanessa’s consent is irrelevant. Consequently, David would not even be entitled to raise his mistake about her consent. Regardless of his belief, David would be convicted of rape.
Contrast the Massachusetts statute with the law in California. The California statute states, “Rape is an act of sexual intercourse . . . [w]here it is accomplished against a person’s will by means of force . . . on the person.”
Similar to the Massachusetts statute, the California statute requires only that the prosecutor prove force and non-consent. However, in California, a general intent crime requires some blameworthy state of mind, beyond merely an intention to commit the actus reus. Usually, it is sufficient for the prosecution to prove the intercourse was forcible and that the victim did not consent; the defendant’s blameworthy state of mind is generally presumed from the force coupled with the victim’s non-consent. However, unlike in Massachusetts, David’s belief as to Vanessa’s consent is a relevant fact.
David’s Mistake of Fact defense would still be subject to some restrictions. While he can raise his Mistake of Fact defense, it will only exculpate him if it was both honest and reasonable. In other words, the court would examine whether David’s mistake was one a reasonable person in the same situation would have made given the circumstances. Advocates say that the California compromise acquits a defendant if he sensibly thought the sex was consensual, while still protecting victims against the unreasonable beliefs of the egotistical and narcissistic Don Juans. They say it is the best of both worlds. I disagree. Ultimately, an inquiry into the reasonableness of the mistake leads to an examination of the victim’s conduct and quietly resurrects the resistance requirement in its search for unequivocal conduct. Courts look to see if the victim’s conduct was equivocal and therefore open to misinterpretation. Furthermore, the California standard still allows for a conviction when the defendant honestly believed that he was engaged in wholly lawful activity on the basis of an unreasonable mistake, and thus imposes a mere negligence standard for this most serious crime.
In contrast, the statute in Arizona reads, “A person commits sexual assault by intentionally or knowingly engaging in sexual intercourse . . . with any person without consent of such person.”
This statute requires proof of both non consent and criminal intent (intentionally or knowingly). While the statute could be read similarly to Massachusetts’s or California’s statute, case law in Arizona reveals a different trend. Arizona courts have read the mens rea as extending beyond the physical act, to the victim’s non-consent. The prosecutor must prove not only that the sexual intercourse was non-consensual, but also that the defendant knew the victim was not consenting to sexual intercourse. This is a wholly subjective standard for mistake of fact. On the one hand, it prevents the conviction of the man who truly believed that he was having consensual, lawful sex with a willing partner. On the other hand, it provides no protection from an egotistical man who believes that “no” only means try harder, or the accomplished liar who manages to convince the jurors that, no matter her protests, he honestly believed she was consenting. David would only have to show he was unaware Vanessa was not consenting, even if his mistake was unreasonable given the circumstances. So long as the trier of fact found David’s belief to be honest, he would be acquitted.
Thus, we find three different outcomes in three states for the same set of facts. Vanessa still believes she was raped, and David still believes the sex was consensual, yet the results are poles apart.
When rape is universally regarded as one of the most heinous crimes, why is its definition and interpretation so different? The incongruity stems from two things. First, while rape has consistently been seen as a general intent crime, scholars and judges have never clearly agreed on the meaning of general intent. For some, general intent requires only that the defendant intentionally commit the actus reus of the crime, as in Massachusetts. For others, as in California, general intent additionally requires some blameworthy state of mind. This interpretive difference had no practical effect when all extramarital sex was illicit, and therefore criminal. Under those conditions, the mere knowledge one was engaging in extramarital sex was sufficiently blameworthy for some sort of criminal conviction. Proof of non-consent merely moved the offense charged from adultery to rape, not from lawful to criminal. As such, the defendant’s belief in the victim’s consent was inconsequential. Over time however, relaxation of sexual taboos has led to the decriminalization of extramarital sex. The central ingredient in our social understanding of rape today is non-consent.
This brings us to the second reason for the inconsistency: rape law reform did not proceed in step with societal mores. Despite a strong feminist movement across the United States urging rape law reform, there was no national conversation about rape or about rape law. Lawmakers did not consistently situate non-consent as the defining characteristic of rape, nor did they uniformly adopt the defendant’s moral blameworthiness as an essential ingredient of rape. Instead, federalism allowed each state to proceed with rape law reform on its own, at its own pace and in its own manner. In some states, the law has remained hopelessly tethered to historic laws with outdated ideas. In other states, the law has moved forward almost randomly, in some respects but not in others. The result is a patchwork of laws representing half–done reforms and wholesale confusion. The perils of federalism are distressingly evident in this area of law where the same event can yield such startlingly different outcomes.
Current rape law in the United States is a morass of contradictions. This kind of inconsistency demands reform. While regional values may permit limited variance from state to state, such extreme variance on the importance of mens rea, and thus on the definition of the crime itself, presents fundamental problems for criminal defendants and victims. The criminal law is supposed to provide a clear guide to allow individuals to conform their conduct to the law. It is also supposed to represent our societal values. The current state of rape law in the United States does neither.
 Born and raised in Canada, Professor Rashmi Goel brings to bear her experience on both sides of the border in her Criminal Law class and in her upper-level seminars, Multiculturalism, Race & the Law and Comparative Law. In conjunction with her ongoing research and scholarship in these areas, she has also developed expertise in international criminal law and restorative justice. This essay is a preview of Professor Goel’s current article entitled “Reasonable Rape,” a more comprehensive examination of the Mistake of Fact in rape law. “Reasonable Rape” is part of a series of articles in this area that includes a comparative analysis of the defense in the UK, Canada and the United States.
 Any criminal adjudication involving rape is intensely fact-specific. Therefore, an examination of the discrepancies within rape law is best approached with an explicit and specific-fact scenario. Consequently, this scenario is deliberately explicit and eschews euphemistic language.
 Wayne R. LaFave, Modern Criminal Law 298 (5th ed. 2010).
 Id. at 299.
 Even Hammurabi’s Code, 4,000 years old, recognized rape as a crime. See Susan Brownmiller, Against Our Will: Men, Women, and Rape 9 (1975).
 Historically, rape was one of the few crimes for which the death penalty was available as a sanction. Note that, pursuant to Coker v. Georgia, 433 U.S. 584, 599-600 (1977), the death penalty is no longer available as a punishment for adult rape. See also Kennedy v. Louisiana, 554 U.S. 407, 413 (2008) (holding unconstitutional the application of the death penalty for child rape).
 For example, New Jersey provides for forcible rape, but case law suggests that even the force necessary to achieve penetration is sufficient to constitute force. See In re M.T.S., 609 A.2d 1266 (N.J. 1992). This essentially eliminates force and redefines the offense as one requiring non-consent. In contrast, Hawaii still requires, at least jurisprudentially, some level of resistance to demonstrate force “a genuine physical effort to resist as judged by the circumstances.” State v. Lima, 643 P.2d 536, 540 (1982).
 As discussed later in this essay, Massachusetts, Arizona and California all require very different levels of mens rea for culpability. Many states, like Rhode Island, do not mention any mens rea at all, while others, like Arkansas and Arizona require subjective knowledge that the victim is not consenting.
 Evident in the Latin maxim, actus non facit reum nisi mens sit rea (the act does not make one guilty unless the mind is guilty).
 Current rape law in some states actually allows for a conviction where the defendant was negligent as to the victim’s consent. California is one example of this: if the defendant can be relieved of culpability when he possesses an honest and reasonable belief as to the victim’s consent, then he will still be held culpable if he holds an honest but unreasonable belief as to her consent. Conviction on the basis of unreasonableness, as opposed to recklessness, is clearly a conviction based on negligence. Susan Estrich has commented on this at length in her pivotal book, Real Rape. Real Rape 94 (1987); but see Stephen J. Schulhofer, Unwanted Sex: The Culture of Intimidation and the Failure of Law 258 (1998). In other states, conviction requires the defendant’s awareness that the victim was not consenting. These states include Arkansas, Arizona, and Montana.
 Rape laws that relieve the defendant of culpability where his belief in the victim’s consent is found to be reasonable ultimately require the victim to behave a certain way, by reference to an ideal standard of behavior to demonstrate her non-consent unequivocally. Saying “no” is frequently insufficient. See M.J. Anderson, Reviving Resistance in Rape Law, 1998 U. Ill. L. Rev. 953, 957 (1998).
 Disparities across the United States for rape prevent individuals who wish to understand and conform their conduct to the law from knowing with certainty what kind of conduct is prohibited. Everyone knows that violent sexual assault is prohibited, but the more prevalent experience of rape includes more complicated scenarios that involve miscommunication. Uncertainty as to the elements of rape does nothing to help men or women navigate the already treacherous terrain of sexual relations. See Schulhofer, supra note 10, at 63. It also does little to provide certainty for the judges and juries charged with evaluating each case. See Victor Tadros, Rape without Consent, 26 O.J.L.S. 515 (2006).
 Similarly, women who encounter compulsion by force have no guidance as to what kind of response is required to clearly demonstrate non-consent for the purposes of rape.
 Mass. Gen. Laws Ann. ch. 265, § 22(b) (West) (emphasis added).
 LaFave, supra note 3, at 269.
 See Commonwealth v. Lopez, 745 N.E.2d 961, 966 (2001).
 Cal. Penal Code § 261(a)(2) (West 2003).
 People v. Mayberry, 15 Cal.3d 143, 155-56 (1975).
 People v. Williams, 841 P.2d 961, 966-68 (1992).
 Id. at 965.
 Susan Estrich, Rape, 95 Yale L.J. 1087, 1102 (1986).
 Williams, 841 P.2d at 966.
 Estrich, supra note 23, at 1102.
 Ariz. Rev. Stat. Ann. § 13-1406 (A) (West).
 State v. Witwer, 856 P.2d 1183 (1993).
 Id. at 1186.
 LaFave, supra note 3, at 898.
 Id. at 268-69.
 Id. at 898.
 Anne M. Coughlin, Sex and Guilt, 84 Va. L. Rev. 1, 7 (1998).
 Id. at 27.
 Id. at 35.
 Id. at 21.
 Brownmiller, supra note 5, at 8.
 See generally C. Spohn & J. Horney, Rape Law Reform: a Grassroots Revolution and Its Impact (1992).
 See generally id.
 Spohn, supra note 41, at 20.
 Id. at 35.
 Id; Susan Caringella, Addressing Rape Reform in Law and Practice 66 (2009). See generally Estrich, supra note 23.
 Caringella, supra note 45, at 1; J. Marsh, A. Geist & N. Caplan, Rape and the Limits of Law Reform viii (1982); Spohn, supra note 41, at 21.
 California for instance still retains a form of the marital rape exemption. See Cal. Penal Code § 261.6 (West).
 Almost all states have adopted procedural reforms, such as the rape shield law, but they vary significantly in their effect. Caringella, supra note 45, at 13-17; Spohn, supra note 41, at 26.
 Joshua Dressler, Understanding Criminal Law 43 (5th ed. 2009).