Smith and Hogan at Villanova: Reflections on Anglo-American Criminal Law, the Definition of Rape, and What America Still Needs to Learn from England

Abstract

This essay was presented at the Norman J. Shachoy Symposium in September 2015, commemorating the 60th anniversary of the Villanova Law Review. Primarily, it is a comment on two articles published in the Villanova Law Review: John C. Smith, “Subjective or Objective? Ups and Downs of the Test of Criminal Liability in England” (1981-1982) and T. Brian Hogan, “Crime, Punishment and Responsibility.” (1978-1979). The essays, authored by two of England’s most influential criminal law theorists, take up the broad issue of criminal responsibility. Moreover, in Smith’s contribution, he offers insights regarding how to think about the specific issue of mens rea in rape. In addition to engaging and honoring the work of Smith and Hogan as it appeared in the Villanova Law Review, this essay will defend two claims concerning comparative Anglo-American criminal law. First, English criminal law has long had a more salutary approach than many American jurisdictions when it comes to asking the right kind of questions regarding the mens rea of rape. Second, when it comes to substantive answers regarding what the mens rea of rape should be, American jurisdictions still have much to learn from England’s example.

Keywords: criminal law, sexual assault, rape, mens rea, English law, comparative law