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Why Rape Should Not (Always) Be a Crime

By Katharine K. Baker. Full text here.

This Article argues that the criminal law is simply not up to the task of policing a huge amount of sexual assault. The on-going initiative to curb the prevalence of sexual misconduct on college campuses abandons the criminal law and uses discrimination doctrine to dislodge the norms that criminal rape reform tried, but failed, to transform sufficiently­. This move to discrimination doctrine is necessary because the rape reform movements of the 1970s and 80s asked too much of the criminal law. Rape reformers tried to make a woman’s willingness to have sex—her consent—the centerpiece of the rape inquiry. They wanted to upend a norm that validated men’s sense of entitlement to sex. While these efforts to shift norms may have gotten the theory of rape right, they failed to appreciate inherent limitations in the criminal process. The criminal burden of proof for non-consent is too high for an effective conviction rate for sexual assaults that do not involve force. The criminal stigma associated with rapists, reified by popular “tough-on-rapists” measures, undermines attempts to criminalize commonplace behavior. And the complicated relationship between rape’s injury, women’s agency, and the criminal law means that many women are unwilling to see themselves as rape victims and especially unwilling to invoke the criminal process to vindicate their injury. Discrimination doctrine avoids all these problems, but still allows for the policing of predatory male behavior. Effective enforcement of discrimination doctrine may, ultimately, affect more lasting change to the social norms that condone men’s appropriation of sex, and thus pave the way for comprehensive enforcement of the criminal law as reformed. The key will be treating what is happening on college campuses as something other than rape. The de facto monopoly of criminal law over rape should end not despite its effects on social norms, but because of them.