Outline

Thesis: Rape is a problem that our justice system is not well equipped to address, and the law is over- and under-inclusive as a result. An intermediate misdemeanour charge, which entailed education and therapy instead of jail time, would be a better method than either full acquittal or a full rape conviction for dealing with acquaintance rapes where physical force was absent and which are based on a mistaken belief of consent.

Rape and the Law

What is the problem with rape and the law?

Note: all states have different statutes, there have been many positive developments in rape law in recent decades, I am here only dealing a specific issue: male-female non-forcible acquaintance rape. Some states don’t even recognize non-forcible rape. Some countries take the woman’s statement that she didn’t give consent as sufficient to shift the burden to the defendant to prove otherwise (Canada).

However, pretty much everyone agrees that rape is still endemic to our society and is also chronically under-reported

Cases that are adjudicated almost always hinge on he-said, she-said and so are going to be over and under inclusive

The disparity between rapes committed and rapes reported indicates that the law needs to do a better job of addressing rape

Why does the law do a bad job of dealing with rape?

Rape is different than other crimes in that there is rarely evidence outside of the testimony of the victim and defendant

Rape is complicated by gender stereotypes and traditional beliefs about sex roles

There is therefore a subjective element to rape that makes it especially ill-suited to be dealt with by a justice system that attempts to establish the objective truth by examining evidence (there is generally none) and deciding on credibility (both parties could be credible bc both could be telling what they perceive as the truth of what happened)

Stuck with either trying to make the law normative (can talk about cannibalism article here) and punishing people for crimes they did not realize they were committing, or acquitting and thereby tacitly endorsing non-forcible acquaintance rape

A Possible Alternative

Gender stereotypes are the underlying problem

Acquaintance rape is at its heart an issue of traditional ideas about sex roles and gender stereotypes (women always show initial resistance, men are supposed to be aggressive)

If there is a genuine mistake about consent, it is unjust to punish the rapist. This can happen under a law like Canada’s, which says that if the victim was incapable of giving consent or made any indication of lack of consent, mistaken consent cannot be used as a defence. However, it is also unsatisfactory to acquit the rapist bc he obviously engaged in sexual conduct that was unwelcome. So the law can be both over and under inclusive

It follows that the way to deal with this is to work towards eradicating the societal ideas that lead to acquaintance rape

Mandatory Education and/or Therapy to Combat the Problem

An intermediate charge that could be used in non-forcible acquaintance rapes might provide a viable alternative. A conviction under that charge would ideally entail therapy sessions and sensitivity training for the defendant. The training would focus on eradicating the traditional ideas that lead to acquaintance rape based on miscommunication. Ideally this would impress on the offender the seriousness of what occurred, and prevent a recurrence, without the stigma and severe punishment of a rape conviction. The victim would also be vindicated in some sense because the court is recognizing that what the offender did was wrong.

Obv there are potential problems (might put real rapists back on the street, high costs of therapy, etc). The most serious risk is that this could be abused by juries to “excuse” date rape. It would have to be made clear that there is a high standard – the charge can only be made where there is convincing evidence that the perpetrator had a genuine, objectively reasonable, good faith belief that the victim had consented.

Conclusion

Despite the potential problems, a misdemeanour conviction that requires therapy and sensitivity training is preferable to a rape conviction or an acquittal in cases where the jury perceives that there has been a genuine mistake regarding consent.

-- ClaireOSullivan - 31 Mar 2008

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I do agree with your thesis: "Rape is a problem that our justice system is not well equipped to address." And I would like to suggest some names for the tort you propose: "Moving too fast;" "Disrespecting an acquaintance;" "Violating Title VII with a potential co-worker;" "Stealing bases."

I don't mean to disrespect the real problem: social intercourses get interpreted differently by their participants. But the fact that intercourses (sexual or otherwise) contain misunderstandings does not, by itself, justify the erection of state power and its thrusting upon one party the other's understanding. "Misunderstanding" should not be made a tort.

I think that education and therapy are more properly applied preemptively, as they currently are. Assuming that our goal is to reduce the number of relationships that end in accusations of rape, we should help EVERYONE, men and women alike, learn to send and read signals better.

-- AndrewGradman - 31 Mar 2008

Claire isn't advocating the creation of a tort. I think she's trying to find a middle ground within criminal law between the approach of Canada, which may over-criminalize such 'misunderstandings', and the approach of jurisdictions which refuse to recognize non-forcible rape at all. This doesn't preclude preemptive education, but we get plenty of that in high school and college and it's barely taken seriously, i think precisely because non-forcible rape is often chalked up to a simple misunderstanding. However, to call non-forcible rape a misunderstanding is oversimplified because in many instances the perpetrator may understand perfectly well the signals being given, but may know that that he (or she?) can pretty much get away with it. I have no idea how criminal law should deal with that problem. I think this will be a good topic to grapple with.

-- VishalA? - 01 Apr 2008

Andrew, I think that having an intermediate misdemeanor charge such as the one Claire suggests may serve as a deterrent or a self-policing mechanism (a preemptive strike, as you put it). Knowing that they may face such a charge, individuals about to engage in sexual conduct will be urged to ask themselves: “Am I absolutely sure that there is consent here?” If one party is drunk, or in some other way incapacitated, there will be incentive to refrain from sexual conduct.

As Claire said, the subjective element of sexual conduct/relations makes it difficult to address through traditional legal avenues. Perhaps we could use the law--through potential punishment/sanctions--to encourage individuals to police their own sexual behavior? Since a misdemeanor charge would possibly be easier to charge and convict on, individuals may be more likely to make sure that they aren’t engaging in date rape. Claire, I’m excited to see how this idea pans out.

-- MinaNasseri - 01 Apr 2008

Claire, i think that this is an excellent idea, and, as i mentioned to you before, it is very close to how i was originally going to frame my topic. I've since broadened my topic so as to create less overlap. But, i'm thinking i'll link your topic to mine, because it's a good example of the analysis that i think should occur more often wherever there are gender biases in the law. You get at the heart of the problem, and think outside of the box to create a solution. All in all, very good idead.

Unfortunately, and it is with great dismay that i say this, i have to at least partially agree with gradman. If you concede that the root of the problem is in socialized gender miscommunications which play a role in how both genders communicate in the bedroom, i hardly see it as fair to penalize one gender for a mistake both contribute to. I'm not sure i see any better way to do it (maybe better sex ed in HS dealing with issues like this), but it seems like blaming the individual for a mistake created by the group, if not society as a whole.

I don't know. I like the analysis. I just don't know how well tailored to the problem the solution really is.

-- OluwafemiMorohunfola - 04 Apr 2008