NCJ Number
35266
Journal
University of Chicago Law Review Volume: 43 Issue: 3 Dated: (SPRING 1976) Pages: 613-645
Date Published
1976
Length
33 pages
Annotation
THIS COMMENT EXPLORES THE UNDERLYING REASONS FOR CONFUSION IN THE LAW'S WORKING DEFINITION OF RAPE AND SUGGESTS THAT THE LAW'S TREATMENT OF CONSENT ISSUES IN OTHER AREAS MAY BE APPLICABLE TO RAPE CASES.
Abstract
THE AUTHOR ARGUES THAT, WHILE THE CENTRAL SUBSTANTIVE ELEMENT OF RAPE IS NONCONSENT, THE LEGAL COMMUNITY HAS NOT YET DEVELOPED A PRINCIPLED STANDARD OF EFFECTIVE NONCONSENT IN RAPE. INSTEAD, COURTS AND LEGISLATURES HAVE TRIED TO MANIPULATE EVIDENCE AND OTHER RULES AROUND AN UNDEFINED ISSUE, USUALLY GUIDED BY QUESTIONABLE ASSUMPTIONS ABOUT RAPE COMPLAINANTS AND RAPISTS. IN THE PROCESS, HE ARGUES, THEY HAVE LOST SIGHT OF AND FAILED TO PROTECT INTERESTS SERVED BY CRIMINALIZATION OF RAPE. THE FIRST SECTION OF THIS ARTICLE IDENTIFIES THE POLICIES SERVED BY CRIMINALIZATION OF RAPE, NOTES THE FAILURE OF THE LEGAL SYSTEM TO FULFILL THESE POLICIES, AND SUGGESTS THAT AT LEAST PART OF THIS FAILURE MAY BE ATTRIBUTED TO SUBSIDIARY LEGAL RULES WHICH UNNECESSARILY HINDER THE SYSTEM IN IDENTIFYING AND PUNISHING RAPISTS. THE SECOND SECTION CONTINUES IN THIS VEIN WITH A BRIEF EXAMINATION OF CURRENT CONTROVERSIES OVER THE FORMAL DEFINITION OF RAPE AND OVER ADMISSION OF CERTAIN EVIDENCE IN RAPE TRIALS, WITH A VIEW TOWARD DRAWING OUT THE ERRONEOUS ASSUMPTIONS WHICH HAVE DISTORTED TRADITIONAL RULES OF CRIMINAL LAW AND HAVE THEREBY FORCED THE WORKING DEFINITION OF RAPE AWAY FROM ITS CENTRAL ELEMENT. THIS SECTION ALSO SUGGESTS THAT BOTH THE TRADITIONAL AND REFORM TREATMENTS OF THESE CONTROVERSIES PLACE TOO MUCH EMPHASIS ON CATEGORICAL SOLUTIONS TO COMPLEX PROBLEMS. THE AUTHOR THEN EXAMINES THE TURN-OF-THE-CENTURY DEBATE OVER THE MEANING OF CONSENT IN CASES OF RAPE BY SUBTERFUGE, ARGUING THAT NEITHER THAT DEBATE'S ASSUMPTION ABOUT FEMALE CHARACTER, NOR ITS TREATMENT OF RAPE AS BEING IMMUNE FROM GENERAL PRINCIPLES OF CRIMINAL LAW, NOR ITS RESOLUTION OF CONSENT PROBLEMS BY CONVENIENT CATEGORICAL RULES SHOULD CONTINUE TO INFLUENCE THE SUBSTANCE OR TONE OF CURRENT THOUGHT ABOUT THE MEANING OF CONSENT IN CASES OF FORCIBLE RAPE. FINALLY, THE AUTHOR EXAMINES AND COMPARES THE TREATMENT OF CONSENT ISSUES IN OTHER AREAS OF THE LAW WITH THEIR TREATMENT IN RAPE LAW, CONCLUDING THAT BOTH THE FORMAL AND WORKING DEFINITIONS OF NONCONSENT IN RAPE SHOULD BE BROUGHT MORE NEARLY IN LINE WITH THOSE IN OTHER AREAS OF LAW. (AUTHOR ABSTRACT MODIFIED)