I'm not sure that it is possible to be tricked into raping someone. Rape has a mens rea requirement that the defendant intended for the sex to be non-consensual. Some jurisdictions do subject that to a requirement that the defendant honestly and in good faith believed it was consensual, and that being mistaken about that was a mistake that a reasonable person would have made. If you are tricked into it, you probably won't have the necessary mens rea.
For example, consider this hypothetical.
Bob meets Alice at a bar, asks her to have sex with him, she says yes, and they do so. Later, it is discovered that Charles forced Alice to go to the bar, meet Bob, and say yes to whatever he asked. Bob did not know about this. He thought it was just a normal, consensual hook up at a bar.
Bob would probably not be guilty of rape, because a reasonable person in that situation would believe Alice had consented.
Charles, though, would be guilty of rape. (Rape in most jurisdictions isn't just you having sex with someone against your will--it is making someone have sex against their will with you or a third party).
Stallman is not arguing that nobody raped or assaulted the girl. He's just saying that he thinks Minsky is like Bob.
Extending your argument, it is probably not possible to trick someone into murdering someone, because murder requires intent. But it’s definitely possible to trick someone into killing someone.
With rape, we don’t have two different words like that. And Stallman doesn’t seem to be limiting himself to a strictly legalistic interpretation of everything.
I think Stallman was looking at a moralistic interpretation from Minsky's point of view.
Minsky's sex with the Epstein girl was in 2001, several years before Epstein's legal trouble over his sexual practices. She was also over the age of consent at the time in the US Virgin Islands, which was 16 (it did not become 18 until the Child Protection Act of 2002).
So Stallman's argument is that from Minsky's point of view it likely seemed to be a perfectly legal, consensual encounter. Presumably, Epstein was somewhat cautious over letting people know he kept sex slaves, and so would instruct the girls to not go around introducing themselves as his sex slaves to his guests. Thus, Stallman believes that we should not be tossing Minsky in with the people who had sex with Epstein girls knowing it was not consensual.
I've now seen several different places report that Stallman said that the Epstein girls were "entirely willing". What he actually said was
> We can imagine many scenarios, but the most plausible scenario is that
she presented herself to him as entirely willing. Assuming she was
being coerced by Epstein, he would have had every reason to tell her
to conceal that from most of his associates.
He's not saying they were willing. He's saying they probably said they were willing because Epstein would require them to say that. This is an important distinction.
This should not be a controversial statement--if Epstein had sufficient power over someone to force them to have sex with third parties it is very hard to believe that he didn't also have sufficient power over them to tell them to claim they were acting on their own when they did so, or that he was stupid enough not to exercise that power.
> Historically, statutory rape was a "strict liability" offense, meaning that it didn't matter whether the actor knew that the other person was too young to consent to sex. Some states now permit a defense of honest mistake. Basically, the actor argues "I honestly thought she was old enough because...." However, other states don't recognize this defense.
> Appellant Tiba Francis appeals his conviction for aggravated rape. ... At trial, he argued that mistake of fact is a defense to the aggravated rape charge, and moved that the trial court should allow the jury to consider such defense. ... The jury convicted appellant of the Aggravated Rape charge based on the trial judge's instruction that mistake of fact as to the victim's age is not a defense. ... Because the trial court correctly interpreted section 1700(a),this Court will affirm Francis’s conviction.
I see this as clear evidence that rape in the Virgin Islands does not always have a mens rea requirement.
> Rape and its mental element was considered in the case of DPP v Morgan by the House of Lords, in 1976. The victim, Mrs Morgan’s husband (Morgan) invited three men, who were strangers, to have sex with his wife (Mrs Morgan). Morgan had, allegedly, told the three men that his wife was ‘kinky’ and was likely to resist and say no to sex and that this would mean she was actually saying yes and was only resisting to get ‘turned on’. Morgan denied that he had said this to the three men. All four men had sex with Mrs Morgan by using force and violence against her resistance. The three men claimed that they believed that Mrs Morgan was consenting due to what Morgan had told them prior to inviting them. The jury was directed by the trial Judge who stated that ‘unless their belief was based on reasonable grounds, it could not constitute a defence to rape. The three men were convicted of rape and Morgan was convicted of aiding and abetting. All four men appealed to the Court of Appeal then the House of Lords against their convictions. Here it was held that there could not be a conviction of rape if the man honestly thought that the woman had consented to sexual intercourse with his belief not having to be reasonable. However, the proviso was applied and the convictions were upheld.
However, it is no longer allowed. Continuing to quote from the same source: "There was widespread public disapproval of the decision made by the House of Lords in DPP v Morgan, with the decision being hailed as the ‘rapists’ charter’, which was formally known as the ‘mistaken belief’ because it meant that the victim (woman) could actively not be consenting by resisting with struggle and even shouting ‘no’, but the man’s conviction could still be upheld." ... "One of the major changes in the law of rape brought by the 2003 Act was the abolition of the ‘Morgan Rule/Defence’, which as mentioned earlier, could have been used when a man believed the woman had consented, no matter how unreasonable the belief. The law today to determine a belief to be reasonable or not is done by analysing if any steps were taken by the man to be sure whether or not the women had consented."
This is the "honestly and in good faith" requirement you pointed out was the case for some jurisdictions in the US. I wanted to highlight it as an example of being tricked into having sex that was different than the scenario you presented.
Stallman may be making the argument you say he is. However, the relevant law appears to be one of strict liability, and has been for a long time.
Statutory rape would not be applicable because she was 17, which was over the age of consent in the US Virgin Islands in 2001, which was 16. It was changed to 18 by the Child Protection Act of 2002.
Your statement was "Rape has a mens rea requirement that the defendant intended for the sex to be non-consensual"
I pointed out that it is not a blanket statement, and in the US generally the mens rea defense cannot be used in regards to prohibited sex with a minor, including on the US Virgin Islands.
For example, consider this hypothetical.
Bob meets Alice at a bar, asks her to have sex with him, she says yes, and they do so. Later, it is discovered that Charles forced Alice to go to the bar, meet Bob, and say yes to whatever he asked. Bob did not know about this. He thought it was just a normal, consensual hook up at a bar.
Bob would probably not be guilty of rape, because a reasonable person in that situation would believe Alice had consented.
Charles, though, would be guilty of rape. (Rape in most jurisdictions isn't just you having sex with someone against your will--it is making someone have sex against their will with you or a third party).
Stallman is not arguing that nobody raped or assaulted the girl. He's just saying that he thinks Minsky is like Bob.