Comment by tzs
4 years ago
> It doesn't matter what the perpetrator thinks.
It does matter in most jurisdictions. Rape is usually not a strict liability crime. Conviction requires both an act (actus reus) and criminal intent (mens rea) on the part of the defendant. (Statutory rape, on the other hand, often is strict liability with only an actus reus requirement).
Generally if an act can be legal or illegal and the defendant believes that they are doing the legal version, the mens rea requirement is not met and the defendant is not guilty. Many jurisdictions do require that the defendant's belief be in good faith and their mistake be one that a reasonable person could make.
For an example of the kind of thing the prosecution must typically prove, here are California's jury instructions for "rape of intoxicated woman or spouse" [1].
Thank you for lending an expert opinion backed by facts to a conversation that otherwise has been devoid of it.