Addressing Rape Reform in Law and Practice

Addressing Rape Reform in Law and Practice

Susan Caringella
Copyright Date: 2009
Pages: 368
https://www.jstor.org/stable/10.7312/cari13424
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  • Book Info
    Addressing Rape Reform in Law and Practice
    Book Description:

    The first comprehensive book on rape since Susan Brownmiller's Against Our Will and Susan Estrich's Real Rape, this volume probes every aspect of rape law and the discrepancies between ideal law (on the books) and real law (in action). Susan Caringella canvasses the success and failure of reform in the United States, as well as Australia, Britain, Canada, and New Zealand, and assesses alternative perspectives on rape reform, making use of theoretical models, court cases and statistical data. She uniquely delineates a creative model for change while addressing the discretion that undermines efforts at change. This includes charging the accused and plea bargaining, confronting a lack of transparency and accountability in implementing law, and acquiring funding for such changes.

    eISBN: 978-0-231-50875-9
    Subjects: Law, Sociology

Table of Contents

  1. Front Matter
    (pp. i-viii)
  2. Table of Contents
    (pp. ix-xii)
  3. Acknowledgments
    (pp. xiii-xviii)
  4. ONE Background to Rape Reform
    (pp. 1-11)

    Challenges surrounding the discrepancy between social ideals of equality and justice and the reality of discrimination against minorities and women defined social movements focused on civil and women’s rights in the 1960s and 1970s. But these movements also spawned gaps between their own abstract ideals and practical possibilities. This book is concerned with one of these discrepancies, namely, the rise of a rape reform movement that was legislatively ambitious but in many ways ineffective. Through the 1970s, a rape reform movement did prevail in securing changes in rape laws across the United States. These legislative reforms, however, which began with...

  5. TWO Legal Change Sweeps the Nation
    (pp. 12-27)

    Rape reforms aimed to achieve layers of objectives. A primary goal was to promote the prosecution of rape offenders in place of the persecution of rape victims and thus to eliminate the double victimization of rape victims. In order to accomplish this, reforms sought to remove the unique requirements and standards that accompanied carnal knowledge statutes. Carnal knowledge laws de-fine rape as “carnal knowledge of a female, by a man, not of his wife, forcibly and against her will.” The rape reform movement’s attempt to educate the population and criminal justice officials alike went hand in hand with repealing requirements...

  6. THREE Failures and Successes
    (pp. 28-49)

    “In August 12, 1974, the governor of Michigan signed into law a bill titled ‘Criminal Sexual Conduct.’ A wrenching change from the old state law, it represented the first comprehensive attempt by a state to break away from century-old myths and legal traditions surrounding the crime of rape. The new statute had barely made the distance to the governor’s desk, passing its final hurdle in the legislature at 5:30 A.M., July 13, near the end of the last marathon session. Had it not been for a small, sleepless group of dedicated feminists, lobbying all that night, this experimental law might...

  7. FOUR Avenues for and Attitudes About Victims
    (pp. 50-61)

    Interrogating the effects of the developments described on rape victims, rather than on the criminal legal system, reveals, once again, mixed results. There have been some improvements; however, some of the initiatives have had no demonstrable impact on victims directly or on attitudes about them.

    While monetary compensation and restitution can help rape victims heal and get on with their lives, civil suits are not a very realistic option in the majority of cases. First, assailants often do not typically have many assets, so it’s not often worth going through a civil proceeding. Further, victims may not have the necessary...

  8. FIVE The Legal Landscape
    (pp. 62-74)

    There are a variety of approaches to rape law. They can be grouped together based on commonalities. The first set of similar laws in the typology I develop starts with the historic laws on rape that predate reforms. These are framed by patriarchy and male entitlement. The legal reform measures are a second type of rape law. The radical models (such as strict liability and affirmative consent) that have been proposed and even enacted in a rare jurisdiction or two constitute a third framework of rape law. It is worth repeating that while this third type provides important insights, the...

  9. SIX Affirmative Consent Reform Models
    (pp. 75-95)

    A different approach to handling the issue of consent is struck by reforms that stipulate a requirement for affirmatively given consent. Affirmative consent reform law in rape entails the requirement that a female’s positive assent, agreement, or permission to the act(s) of sexual contact or penetration be demonstrated. Antioch College’s policy requiring affirmative, verbal consent before each and every sex act may be the most familiar example.¹

    Instead of looking at whether the victim resisted or indicated nonconsent or said no, affirmative consent flips matters and looks for the woman saying yes. In the absence of evidence establishing “yes,” the...

  10. SEVEN Consent and Voluntariness, Agreement/Nonconsent and Involuntariness, Nonagreement
    (pp. 96-118)

    We need to recognize that regardless of specific reform direction or recommendation, a definitional distinction has to be drawn somewhere so that it is possible to distinguish volitional sex from criminal rape. Drawing a line in the sand cannot be avoided. All reforms may draw it differently, with differing conceptualizations of relevant elements and definitions of same, but they all have to dichotomize criminal sex from acceptable sex in some way at some point. The road to the distinction is often tortuous in detail, making rape reform thinking inaccessible to many (from the public, to practitioners, to even some academics)....

  11. EIGHT Presumptive Nonagreement
    (pp. 119-137)

    A simultaneous consideration of what constitutes aggravating conditions, forceful or coercive conduct on the part of the offender, and involuntariness, nonagreement on the part of the victim indicates a need to modify rape law further.¹ Kinports alone elaborates a critical direction for change in her assessment of the redundancy of proving both force/coercion and nonconsent in rape. Few others as much as intimate the connection Kinports elaborates so well in this regard.² The problem is that in almost all jurisdictions the prosecution must prove nonconsent in addition to force/coercion (Kinports 2001: 756, also citing Anderson 1998). If this requirement is...

  12. NINE Mens Rea
    (pp. 138-153)

    That nonagreement exists when no is indicated is one thing. That it is reasonable to interpret nonagreement when voiced or when force and its ilk are displayed is another. That the law should state that voluntariness, agreement should not and cannot be assumed or implied is yet another matter.

    Whether or not a man intends to perceive, or intends to interpret, or intends to ignore nonagreement when it is apparent, expressed, or legally stipulated as presumptive is a whole separate matter. And this is the matter of mens rea, or criminal intent.

    There are conflicting viewpoints about the role of...

  13. TEN Applying Recklessness and Negligence
    (pp. 154-168)

    Criminal recklessness and negligence can be applied in another way. This chapter looks at how mens rea can be juxtaposed with presumptive nonagreement. How would a provision for presumptive nonagreement (as spelled out in chapter 8) and criminal negligence (spelled out in chapter 9) work together? My model would not be as extreme as strict liability (e.g., Pineau’s aggravated versus misdemeanor rape with no regard for belief, intent, or consequence), or as rigid as proving the lack of affirmative indications of consent in every case, or, especially, as demanding as Schulhofer’s sexual autonomy model. My model is based on an...

  14. ELEVEN Defenses
    (pp. 169-183)

    Tchen quotes one of the drafters of the Michigan legislation: “When the victim is threatened with a dangerous weapon, or is beaten, robbed or kidnapped, the possibility of her willingly consenting to sexual intercourse is so unlikely that it ought to be raised as an alternative theory for the defense rather than have to be shown from the outset” (1983: 1549; italics mine). The next two segments of my model attempt to move toward an alternative theory of consent. The prevailing presumptive nonagreement should be born in mind as the frame for characterizing encounters involving force, coercion, or aggravating crime...

  15. TWELVE Sexual Assault Under Duress and Fraud
    (pp. 184-202)

    Some authors analyze the comparability of rape and other crimes through the investigation of sexual assault in relation to property offenses. Estrich (1987), Pineau (1996b), Schulhofer (1998), and Fairstein (1993) examine other types of offensive sexual encounters that constitute criminal offenses in a few jurisdictions but are not codified as sexual assault offenses in almost all other jurisdictions. The authors consider acts where threats or deceptions to induce someone to do something they would not otherwise do make the acts criminal in other areas of law but not when sex is involved. The behaviors interrogated in this chapter are those...

  16. THIRTEEN Reforming Rape Reforms: Outline of the Model Array
    (pp. 203-212)

    Although some view change in rape law as largely symbolic and/or co-optive of the reform movement, the importance of statutory change cannot be overstated. Statutory law defines crimes, and procedural law defines how these are to be adjudicated. The state is exalted and hegemonically taken as a neutral, objective body that defines wrongs, protects interests, and promotes justice equally for all. The law holds the uniquely influential power to change conceptualizations about what we hold to be decent, acceptable, and good as opposed to bad, unacceptable, and criminal. Hence the law stands as the moral posture for a culture. Members...

  17. FOURTEEN Discussion of the Model Array
    (pp. 213-239)

    While the model array pertains to all rape and sexual assault crimes, it is significant to underscore that it is designed especially to target the difficulties of adjudicating simple, nonaggravated, date, and/or acquaintance rape. The recommendations are strategies devised to break the loggerhead of “he said, she said” rapes, which the criminal justice system has not taken seriously despite even the best reform laws of the past. These directions should assist in the prosecution of aggravated, stranger, “real” rape as well, but given the continuing neglect, minimization, and dismissal of simple rape, something must move us beyond earlier efforts and...

  18. FIFTEEN Advantages of a Paradigm Shift
    (pp. 240-256)

    One advantage of positing a new paradigm, or way of thinking, about rape reform law is that it holds the promise of changing the nature of the discourse about rape. This is to say that it offers the possibility of altering the conceptualization and dialogue that frame the issues surrounding rape victimization. Such a discourse could illuminate unrecognized hegemonic assumptions about causes, criminal justice treatment of cases, and cures for the problems of rape. This holds the potential of breaking through the loggerhead of dammed-up clichés, stereotypes, and archaic conceptualizations about the nature of the crimes, victims, and offenders and...

  19. SIXTEEN Recommendations Complementing the Model Rape Law
    (pp. 257-278)

    New directions carved out in law are generally based on either statute change or precedent-setting court decisions (stare decisis) like the Canadian Ewanchuk decision that discarded implied consent or the opposite British decision in Morgan that allowed unreasonable mistake of consent. Statutory and case law fashion the parameters within which new laws and procedures are implemented and enforced, yet basing new reform on statutes and court decisions alone suffers by neglecting the daily decision making that dialectically or reciprocally determines the contours of the law in actual application. This is true regardless of the source of change. Innumerable processes and...

  20. SEVENTEEN Moving Forward: Social Institutions, Structures, and Processes
    (pp. 279-290)

    Key social institutions can be drawn into the effort to renew reforms to address the issues revolving around rape victimization. The two most significant are the media and the educational system, given the powerful role they play in acculturation and socialization. They shape definitions about what is and is not considered rape, where blame should be sought and placed, and how we—as a society of laws and rules—should respond, treat, and govern citizens when they harm us through crimes like rape and sexual assault.

    Media The media pulls overwhelming weight with the public when it comes to common...

  21. Notes
    (pp. 291-316)
  22. References
    (pp. 317-330)
  23. Index
    (pp. 331-348)