Are crimes worse just because they are crimes (with an example from sexual assault)

Question

I apologise if this needs a TRIGGER WARNING,

I in no way whatsoever wish to trivialise anyone's experiences or moral guilt.

Clearly, not every law is moral and not every moral obligation is legally enshrined. Is that all there is to it? Specifically, I'm asking: does something being a crime ever make a criminal act worse.

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Take the example of the crime of "rape". I believe the law usually states that the victim must

1. not freely consent to the sex act, and
2. it be reasonable to suppose they do not

(b) B does not consent to the penetration, and (c) A does not reasonably believe that B consents.

This is an additional claim.

A further complicating question is whether the criminal law’s usual requirement of mens rea (or “guilty mind”) should apply to rape and, if so, how that requirement should be interpreted. In the most general terms, a mens rea requirement means that the prosecution must show not only that nonconsensual sex occurred, but also that the man was in a certain state of mind with regard to the woman’s lack of consent.

It is the Mens Rea requirement (how it appears in UK law), which some feminists believe should be abandoned

some feminists have argued that rape should be a strict liability offense, that is, one with no mens rea requirement at all. According to MacKinnon, a mens rea requirement means that “the man’s perceptions of the woman’s desires determine whether she is deemed violated,”

It seems obvious, then, that not all non-consensual sex involves the crime of rape. But non-consensual sex is the standard definition of 'rape'. In which case:

• we are not always morally accountable if we have non consensual sex with someone (which seems unlikely) or
• the legal definition of rape adds to the definition of it.

Presumably it is the worse, more morally evil, more blameworthy, action. In which case:

• it is worse merely because it is a crime or
• it would be just as worse even if it was the same crime.

I at least lean toward the latter there.

If that's right, does that mean all criminal acts are no worse for being crimes?

Answer 1

Counterintuitively, possibly yes

To begin with, a better formulation of your question might be: is a bad act worse for being explicitly criminalized?

Before we appeal to authorities, let's consider a simple hypothetical. You have a college roommate who leaves their dirty dishes in the sink after each meal. This is irresponsible and inconsiderate, thus bad (in a minor way).

You let this go for a few days, hoping it will change once life settles into a normal routine, but it does not. So you have a polite word with your roommate and explain that dirty dishes should be placed in the dishwasher instead of blocking the sink. Your roommate agrees, and the conversation ends amicably. But your roommate continues to leave their dishes in the sink.

This is worse, isn't it? Not only are they still doing a thing which is objectively bad, they are now expressly defying an agreement they made with you. That's almost two separate acts.

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An important part of the rule of law is that the law must be public, one reason being that residents cannot abide by rules they are unaware of. So we make the law public, and we say that "ignorance of the law is no excuse" -- all of which places the onus on individuals to learn the laws and obey them.

Socrates' death seems like a relevant example. Sentenced to death for "corrupting the youth" by his teachings, his friends present him with an opportunity to escape, which he refused (and, indeed, he went to his death). Part of his rationale was this: he had lived in that society his whole life, knew the laws, and had many opportunities to do something about the laws, or even leave, if he felt them unjust. He did neither, and so he cannot now choose to defy them when it suddenly suits him.

I do think the situation is different in a modern world. But the larger point still applies: willfully doing something you know you are not supposed to do is worse than if you didn't know it was forbidden.

On the other hand, conventional wisdom suggests that things are different when the underlying act is a moral one (or when the law in question is unjust). For example, I think we generally look back at the people who ran the Underground Railroad as worthy of additional moral praise because they knew that helping humans escape slavery was illegal.

Society is generally pretty good about making sure that everybody knows which acts are permitted and which are not. A choice to perform a prohibited act is thus usually a two-fold choice, the second fold being a choice to align oneself with or against the stated demands of society. That necessarily gives the second fold a moral dimension, regardless of the particulars of the underlying act.

Answer 2

Some laws certainly do make a thing wrong due to expectations.

The cannonical example is traffic laws. If you are in a situation where there are no laws regarding driving (private land for example) then you will drive with the expectation that other drivers may do any-old thing. If there is a roadway then you may expect people to be driving any-old part of that roadway, and so will be looking for them, driving slowly, etc. But if you are in a situation where it is legally required to drive on the right, then driving on the left is going against expected norms and is extremely likely to produce a crash. This is because nobody is expecting you on the wrong side of the road. And causing a crash without a very good reason is morally wrong.