Criminalisation of “gross negligent” rape

Criminalisation of “gross negligent” rape means that an attacker can be convicted of rape if he understands that there is a risk of the victim not giving consent and yet performs the deed regardless. In current law, it must be proven beyond reasonable doubt that he forced the victim into sexual intercourse. Therefore, it must be proven beyond reasonable doubt that the situation was such that the perpetrator ought to have understood that the sexual intercourse was without consent and that force was used on his part, and that he is very much to blame.

If the attacker did not use violence or otherwise made the victim fear for her life or health, the crime cannot be punished as rape, either with intent or with gross negligent. In many instances the attacker is drunk and may therefore have misjudged the situation. (Self inflicted intoxication does not exempt the attacker from criminal liability.)

In the case of gross negligent rape, the perpetrator could be convicted even if he didn’t realise that the sexual intercourse was without consent. Gross negligent rape with regard to a lack of consent will be sufficient to secure a conviction. For this to happen, the perpetrator must not have understood that his behaviour was perceived as being threatening or frightening. The sentence in this case will be less for gross negligent rape than it is for rape. Even if the court finds it highly likely that the victim was forced, this is not enough to secure a conviction. The court must find the offence to have been proven beyond reasonable doubt.

Should it be possible for an attacker to be found guilty of gross negligent rape in a situation in which he didn’t realise the victim felt she was being forced, but should have realised?